Board Turnovers & New Volume Submissions
I am very pleased (and relieved) to report that Kaimi Wenger is collecting information about law review board transitions and dates for submissions for next year's volumes at Concurring Opinions. Follow this link!

Entry Level Hiring Report
The appointments season is winding down, and once again, I will compile an entry-level hiring report. I am interested in all entry-level tenure-track hires at American law schools. Click here to view last year's report. This time around, I am trying to collect the following data elements:

Name of hiring institution, e.g., University of Illinois
Name of new hire, e.g., Jane Roe
First law degree, e.g., JD
Awarding institution for first law degree, e.g., NYU
Date of first law degree, e.g., 2001
Other highest degree, e.g., PhD
Field of other highest degree, e.g., Political Science
Award institution of other highest post-graduate degree, e.g., Harvard
Date of other highest post-graduate degree, e.g., 2002
Pre-tenure track legal academic posititon, e.g., Visiting Associate Professor
Institution of pre-tenure track legal academic position, e.g., Georgetown

I hope you will forgive me for begging, but it would be great if the information actually were sent in this format.
If you are a job candidate, please pass along the email address of the appointments committee chair, so I can find out about other hires.
The data element, "pre-tenure track legal academic posititon," is intended to encompass VAPs, Fellowships, and other full-time positions that are intended to lead to a full-time academic job.
Email information to me at lsolum@gmail.com
Thanks!Update: Reports are already rolling in! Thanks. I'll post an interim report once I have data on a significant number of schools and hires.

“Welfarism” is the principle that social policy should be based solely on individual well-being with no reference to “fairness” or “rights.” The propriety of this approach has recently been the subject of extensive debate within legal scholarship. Rather than contributing (directly) to this debate, we identify and analyze a problem within welfarism that has received far too little attention. Call this the “ex ante/ex post” problem. The problem arises from the combination of uncertainty - an inevitable feature of real policy choice - and a social preference for equality. If the policymaker is not a utilitarian, but rather has a “social welfare function” that is equity-regarding to some degree, then she faces the following choice: Should she care about the equalization of expected well-being (the ex ante approach), or should she care about the expected equalization of actual well-being (the ex post approach)? Should she focus on the equality of prospects or the prospects for equality?
In this Article, we bring the ex ante/ex post problem to the attention of legal academics, provide novel insight into when and why the problem arises, and highlight legal applications where the problem figures prominently. We ultimately conclude that welfarism requires an ex post approach. This is a counterintuitive conclusion because the ex post approach can conflict with ex ante Pareto superiority. Indeed, the Article demonstrates that the ex post application of every equity-regarding social welfare function - whatever its particular form - must conflict with ex ante Pareto superiority in some choice situations. Among other things, then, the Article shows that legal academics must abandon either their commitment to welfarism or their commitment to ex ante Pareto superiority.

In recent years, the European Court of Justice (ECJ) has invalidated many income tax law provisions of EU member states as violating the guarantees of the European constitutional treaties of freedom of movement for goods, services, persons, and capital. These decisions have not, however, been matched by significant European income tax legislation, because no European political institution has the power to enact such legislation without unanimous consent from the member states. Under the treaties, the member states have retained a veto power over income tax legislation. In this Article, we describe how the developing ECJ jurisprudence threatens the ability of member states to use tax incentives to stimulate their domestic economies and to resolve problems of international double taxation. We conclude that the ECJ approach is ultimately incoherent because it constitutes an impossible quest - in the absence of harmonized income tax bases and rates throughout Europe - to eliminate discrimination based on both origin and destination of economic activity. We also compare the ECJ’s jurisprudence with the resolution of related issues in the U.S. taxation of interstate commerce and international taxation. Finally, we consider the potential responses of both the European Union and the United States to these developments.

This article examines current choice of law methodologies and critiques proposals for new and improved methodologies. It rejects the call for a national approach and instead proposes that each state adopt its own statutory choice of law code. The author recommends that each state begin this process by conducting empirical research and analysis of its own choice of law jurisprudence to determine how judges have approached the issue since rejection of traditional methods. Such analysis would examine not only substantive results, but also the methodologies employed and the possible existence of various biases in choice of law analysis. A thorough analysis would also likely reveal clear patterns for those issues that reappear from time to time. Drafters of a state choice of law code, rather than creating a choice of law methodology from whole cloth, would base their recommendations on the state's own jurisprudence. Such a result engages the efforts of both the judicial and legislative branches of the state's government, thereby resulting in a credible written product that reflects the state's own policies and jurisprudence: a true "restatement" of the law.

Until the advent of binding “social clauses” in free trade arrangements, and incorporation of stronger social rights in the European Community treaties, the rapid widening and deepening of international commercial integration proceeded largely separate from international labor rights obligations. Inclusion of a “social clause” in a trade agreement ensures that the parties´ international labor rights commitments have equal dignity and binding force with their trade obligations. The threat of economic sanction for non-observance of labor commitments akin to the penalties for trade rule violations also may provide some “teeth” to induce compliance, unlike the lack of economic sanctions for violation of formally binding ILO and international human rights-based labor provisions.
The implicit domestic political promise of trade negotiators, however, is that the social clause will operate as a circuit breaker in the feared downward spiral of domestic labor standards under pressure of free trade; the social clause functions as a political quid pro quo for trade liberalization. This paper argues that this bargain is largely illusory. Neither the typical human rights “naming and shaming” solution nor the usual national government-centered enforcement machinery provides realistic mechanisms to induce party-state compliance in the labor rights arena. The real parties in interest - employers, trade unions, and workers - are too disconnected from the international institutional process in most international regimes. Those benefiting through a form of unjust enrichment by a signatory country´s violations of its international labor commitments are institutionally insulated from any corresponding liability. Those suffering injury are institutionally excluded from ability to enforce the international obligations, and have no claim to recover compensation for their injuries caused by the government´s breach. The EU might provide a source of useful models for improving institutional arrangements and remedies, so as to ensure that “effective enforcement” becomes a meaningful term. Government reluctance to yield its sovereign control over the politically and economically delicate subject area of labor rights, however, presents an obdurate barrier to movement in this direction.

There is a long-standing debate as to whether changes in shareholder-level taxes have an effect on firm dividend policy. The traditional view is that tax changes influence dividends, while the new view is that there generally is no such effect. In support of the traditional view, recent observers point to the rise in dividends following the reduction in the tax rate on dividends in 2003. In fact, the resurgence in dividends has been so strong that President Bush has made it his top legislative priority to permanently extend the tax cut, which is currently set to expire at the end of 2008. The popular assumption is that the rise in dividends - and any associated economic and corporate governance benefits - will only continue if the lower rate is made permanent. This Article challenges that assumption. Using finance theory and empirical evidence from the U.S. and other countries, this Article shows that the relationship between dividends and taxes over the long run is more complex than dividend tax cut proponents suggest. Because the 2003 tax cut was only a temporary cut, making it permanent may actually have an effect that is opposite of what is intended. The implication is not that a temporary tax cut is preferable to a permanent one, but rather that the attempt to influence corporate behavior through the tax laws should be resisted as either futile or potentially counterproductive.

Columbia Legal Theory Workshop: Robert A Kagan, Professor of Political Science and Law University of California, Berkeley, "American and European Ways of Law: Six Entrenched Differences"
Georgetown Law & Philosophy: Norman Finkel (Psychology, Georgetown)
Yale Workshop Theory & Policy: DALTON CONLEY, Sociology, New York University, Family Background and Race over the Life Course
Hofstra Law: Suzanne Goldberg, Rutgers School of Law – Newark, “Constitutional Adjudication, Civil Rights, and Social Change”
London School of Economics, Centre for Philosophy of the Natural and Social Sciences: Nicola Knight (Michigan), On some aspects of the psychology of normativity
NYU Law: Clay Gillette.
UCLA Law: Ann Southworth, "Social Backgrounds and Characteristics of Prominent Lawyers of the Conservative Coalition: Sources of Conflict and Cohesion"
University of Alabama Law: Rob Atkinson, Florida State
University of Texas Law: Alex Stein (Cardozo), "Ambiguity Aversion and the Criminal Process"

University College, London, Colloquium in Legal & Social Philosophy: Scott Shapiro (Michigan), Massively shared agency
NYU Legal History: Bernadette Meyler, Assistant Professor, Cornell Law School, "Towards a Common Law Originalism”
UCLA Legal History Workshop: Risa Goluboff, University of Virginia School of Law, « Back, The Lost Origins of Modern Civil Rights
University of Georgia Law: Michael Wells (UGA): "Sociological Legitimacy" in the Supreme Court
University of Toronto, Tax Law & Policy Workshops: Reuven Avi-Yonah, University of Michigan The Three Goals of Taxation.
Villanova Law: Milton Regan, Georgetown University Law Center
UC Hastings: Judge Loren Smith, US Court of Federal Claims, Life, Liberty, and (Whose) Property? with commentary by Prof. Bhagwat, UC Hastings.

Thursday, March 2

Yale Legal Theory Workshop: Jennifer Mnookin, UCLA (Law), Envisioning Evidence: Expertise and Visual Proof in the American Courtroom
Boston University Law: Henry Smith (Visiting Professor of Law, Harvard Law School and Professor of Law & Cognitive Science, Yale Law School), "Modularity in Intellectual Property"
Brooklyn Law: Daniel Greenwood, Visiting Professor of Law, Brooklyn Law School, Are Shareholders Entitled to the Residual?
Florida State Law: Jill Fisch, Fordham University School of Law
Fordham Law: Sonia K. Katyal, Associate Professor of Law, Fordham University School of Law, "Trademark Intersectionality"
UC Berkeley Center for Law and Technology & Berkeley Center for Law, Business and the Economy: Symposium on Legal and Policy Issues in Stem Cell Research
UC Berkeley, Kadish Center: Hans Sluga, Professor of Philosophy, University of California, Berkeley, The Care of the Common
NYU Colloquium on Tax Policy and Public Finance: Joseph Bankman, Stanford Law School, and David Weisbach, University of Chicago Law School, “The Superiority of an Ideal Consumption Tax Over an Ideal Income Tax.”
Northwestern Tax Series: Calvin H. Johnson, Andrews & Kurth Centennial Professor, University of Texas at Austin "Tales From the KPMG Skunk Works: The Basis-Shift or Defective-Redemption Shelter"
Oxford Jurispurdence Discussion Group: Juan Cruz Parcero, Reasons to Justify Rights
Oxford Public International Law Discussion Group: Judge Allan Rosas, International Law in the European Court of Justice
Stanford Law & Economics: Marcel Kahan (New York University Law School), "Hedge Funds in Corporate Governance and Corporate Control"
University College, London, Current Legal Problems Lecture: Mindy Chen-Wishart, (Merton College Oxford), ‘Undue Influence: Vindicating Relationships of Influence’
University of North Dakota, Indian Law Center: Philip S. (Sam) Deloria, "Indians in Legal Education"

8:30 a.m. Welcome
* Toni M. Massaro, Dean, The University of Arizona James E. Rogers College of Law
* Debora de Hoyos, Esq., Managing Partner, Mayer, Brown, Rowe & Maw, LLP
* Lance Liebman, Director, The American Law Institute
8:45 a.m Introductory Remarks
* Ellen M. Bublick, The University of Arizona James E. Rogers College of Law
9:00 a.m. Opening Speaker
* The Honorable Richard A. Posner, U.S. Court of Appeals, Seventh Circuit
Economic Loss and Misrepresentation
9:30 a.m. Questions & Answers
10:00-11:45 a.m. Panel 1: The Economic Loss Rule and Its Limits
Moderator: Dan B. Dobbs, The University of Arizona James E. Rogers College of Law
Speakers:
* Mark P. Gergen, The University of Texas School of Law
Non-Contractural Undertakings of a Duty of Care
* Anita Bernstein, Emory University School of Law and New York Law School
Why No Liability for Pure Economic Loss?
* Jean Braucher, The University of Arizona James E. Rogers College of Law
The Dormant Law of Economic Torts in the Shadow of Consumer Protection Statutes
* Jay M. Feinman, Rutgers, The State University of New Jersey School of Law, Camden
The Economic Loss Rule and Private Ordering
* Commentator: Robert L. Rabin, Stanford Law School
12:00 noon Lunch
* Helmut Koziol, Executive Director, European Centre of Tort and Insurance Law and
Director of the Research Unit for European Tort Law of the Austrian Academy of Sciences
Recovery for Economic Loss in the European Union
1:30-3:00 p.m. Panel 2: Principles of Recovery in Economic Torts
Moderator: The Honorable Andrew D. Hurwitz, Arizona Supreme Court
Speakers:
* Deborah A. DeMott, Duke Law School
Breach of Fiduciary Duty
* Ellen Smith Pryor, Southern Methodist University Dedman School of Law
Bad Faith
* Ian Ayres, Yale Law School and Gregory Klass Georgetown University Law Center
New Rules for Promissory Fraud
* Commentator, Theodore J. Schneyer The University of Arizona James E. Rogers College of Law
3:15-4:15 p.m. Panel 3: Economic Torts: A View From Experience
Moderator: Herbert Zarov, Mayer, Brown, Rowe & Maw, LLP
Speakers:
* Charles J. Kalil, Corporate Vice President, General Counsel and Corporate Secretary,
The Dow Chemical Company
* Howard Roin, Mayer, Brown, Rowe & Maw, LLP
* Deborah R. Hensler, Stanford Law School

Saturday, March 4

University of Maryland, Conference:

9:00-10:25ish: Session 3: The Challenges of Maintaining Liberal Constitutional Law in 2005

9:00-10:30 a.m. Panel 4: Emerging Influences on Liability – Comparative Apportionment and Technology
Moderator: Darian M. Ibrahim, The University of Arizona James E. Rogers College of Law
Speakers:
* Andrew R. Klein, Associate Dean, Indiana University School of Law – Indianapolis
Fraud and Comparative Fault
* John C. P. Goldberg, Vanderbilt University Law School and Anthony J. Sebok, Brooklyn Law School
Reasonable Reliance
* Oscar S. Gray, University of Maryland School of Law
Comparative Apportionment for Economic Torts?
* Catherine M. Sharkey, Columbia Law School
Trespass in an Electronic Age
* Commentator, Michael D. Green, Wake Forest University School of Law
10:45 a.m.- 12:15pm Panel 5: Integration and Completion – The Torts Restatement Whole
Moderator: Elena A. Cappella, Esq. The American Law Institute
Speakers:
* Bernard W. Bell, Rutgers, The State University of New Jersey, Center for Law & Justice
Constitutional Limitations and the Economic Torts
* David A. Anderson, University of Texas School of Law
Economic Torts and Defamation Law
* Lucinda M. Finley, Vice Provost, The State University of New York at Buffalo School of Law
Developments and Trends in Privacy Torts
* Kenneth W. Simons, Boston University School of Law
A Restatement Third of Intentional Torts?
12:15-12:30 p.m. Concluding Remarks

Introduction
Some ideas seem to be endlessly debated. We might all agree that "justice" is a good thing, but some of us think that justice boils down to counting the utility of each individual equally, while others think that justice is a matter of respecting basic human rights. Utilitarians might all agree that maximizing expected utility should be the aim of right action, but disagree about what "utility" is. Most torts theorists might agree that causation between an act of the defendant and harm to the plaintiff is an element most or all forms of tort liability, but disagree about what "causation" means. One of the niftiest tricks in legal theory is to handle cases like this with the concept/conception distinction. The "concept" of justice is the general idea, but different political theorists have different "conceptions" of justice. The concept of "utility" is shared by all utilitarians, but eudaimonistic utilitarianism maintains that the best conception of utility is happiness, while hedonistic utilitarianism holds that the best conception is pleasure.
This post provides an introduction to the concept/conception distinction for law students (especially first-year law students) with an interest in legal theory.Essentially Contested Concepts
So far as I know, the concept/conception distinction originates with "Essentially Contested Concepts," a paper written by the philosopher William Gallie in 1956. The core of Gallie's argument was the idea that certain moral concepts are "essentially contested." "Good," "right," and "just," for example, are each moral concepts which seem to have a common or shared meaning. That is, when I say, that the alleviation of unnecessary suffering is good, you understand what I mean. But it may be that you and I differ on the criteria for the application of the term "good." You may think that a state of affairs is good to the extent that it produces pleasure or the absence of pain, while I may think that the criteria for "good" make reference to the conception of a flourishing human life, lived in accord with the virtues. A quick aside. Sometimes, when there is this sort of disagreement, we want to say, "Ah, you and I are referring to different concepts." If by "cause," you mean "legal cause," whereas I use "cause" as a synonym for "cause in fact," then we are using the same word to refer to two different concepts. Back to "good." But in the case of "good," we seem to be using the same concept. I think that the good really is human flourishing and not pleasure; you have the opposite opinion. So we are contesting the meaning of the concept "good," and each of us has a different conception of that concept.
Gallie thought that some concepts were essentially contested. That is, Gallie believed that some concepts were such that we would never reach agreement on the criteria for application of the concepts. If a concept is essentially contested, then it is in the nature of the concept that we disagree about the criteria for its application.Two Uses of the Concept/Conception Distinction

Rawls on the Concept and Conceptions of Justice
Perhaps the most famous use of the concept/conception distinction is found in the political philosopher John Rawls's famous book, A Theory of Justice. Rawls appeals to the distinction between the concept of justice and particular conceptions of justice. His theory, justice as fairness, is defended as the best conception of justice. Notice that as used by Rawls, the concept/conception distinction does not imply that the concept of justice is essentially contested. It might be the case that we would eventually come to agreement on the criteria for a just society. In other words, not all contested concepts are essentially contested concepts.Dworkin on Concepts and Conceptions in Legal Reasoning
Another well-known use of the concept/conception distinction is found in Ronald Dworkin's theory, law as integrity. You may know that Dworkin uses a hypothetical judge, Hercules, to illustrate his theory. Suppose that Hercules is interpreting the United States Constitution. He finds that the Equal Protection Clause of the Constitution makes reference to the concept of equality. In order to decide some case, about affirmative action say, Hercules must decide what equality means. To do this, Hercules will determine what conception of equality best fits and justifies our legal practices--narrowly, the equal protection clause cases but more broadly, the whole of American constitutional law. For Dworkin, "equality" is not an "essentially contested concept," because Dworkin does not take the position that there cannot be stable criteria for the meaning of concepts like equality. Rather, "equality" is an interpretive concept--a concept that is subject to interpretation. Interpretive concepts like equality are, in fact, contested, and may, in fact, always be contested, but this is not an "essential" (necessary) characteristic of interpretive concepts.

Conclusion
The law is full of contested concepts, and one of the jobs of legal theorists is to determine which conceptions of these concepts are the most defensible. Indeed, because contested concepts come up all the time, the concept/conception distinction is extremely useful as a tool for clarifying the nature of disagreements about what the law is and what it should be. When you next run into an idea like "justice," "equality," "utility," or "causation," ask yourself whether different conceptions of that concept are at work.References

Legal Theory Bookworm
The Legal Theory Bookworm recommends Taking Rights Seriously by Ronald Dworkin. This is a modern classic, containing early and important essays, including Hard Cases--an absolute must read for every law student and legal academic. Here's a blurb:

What is law? What is it for? How should judges decide novel cases when the statutes and earlier decisions provide no clear answer? Do judges make up new law in such cases, or is there some higher law in which they discover the correct answer? Must everyone always obey the law? If not, when is a citizen morally free to disobey?
A renowned philosopher enters the debate surrounding these questions. Clearly and forcefully, Ronald Dworkin argues against the "ruling" theory in Anglo-American law-legal positivism and economic utilitarianism and asserts that individuals have legal rights beyond those explicitly laid down and that they have political and moral rights against the state that are prior to the welfare of the majority.
Mr. Dworkin criticizes in detail the legal positivists' theory of legal rights, particularly H. L. A. Hart's well-known version of it. He then develops a new theory of adjudication, and applies it to the central and politically important issue of cases in which the Supreme Court interprets and applies the Constitution. Through an analysis of Rawls's theory of justice, he argues that fundamental among political rights is the right of each individual to the equal respect and concern of those who govern him. He offers a theory of compliance with the law designed not simply to answer theoretical questions about civil disobedience, but to function as a guide for citizens and officials. Finally, Professor Dworkin considers the right to liberty, often thought to rival and even pre-empt the fundamental right to equality. He argues that distinct individual liberties do exist, but that they derive, not from some abstract right to liberty as such, but from the right to equal concern and respect itself. He thus denies that liberty and equality are conflicting ideals.
Ronald Dworkin's theory of law and the moral conception of individual rights that underlies it have already made him one of the most influential philosophers working in this area. This is the first publication of these ideas in book form.

This book has tried to demonstrate why I believe that our Constitution is sufficiently defective to count as broken. Some of its defects are truly grievous:

*The allocation of power in the Senate
*The almost certain presidential dictatorship that will follow any catastrophic attack on members of Congress
*Excessive presidential power
*The electoral college
*The hiatus between the repudiation of a sitting President and the inauguration of a successor
*The inability to get rid of an incompetent President
*The functional impossibility of amending the Constitution with regard to anything truly significant.

For those of you who share my concerns, the central question is, what now? How, if at all, can we work together to begin fixing our Constitution. Is it possible to escape from what I have called our constitutional “iron cage”? Anyone notion of “escape” requires first the belief that we are trapped in a possibly dangerous situation and then that there is some actual means of achieving it. The first factor involves what might be termed a state of consciousness; the second, a determination of whether means exist to achieve one’s goals.

Levinson is one of the most creative thinkers in the legal academy. Highly recommended!

Faculty Library (Room 2326)
Timothy Wu
Professor of Law
Columbia Law School
"The Copyright Paradox-Understanding Grokster"

11:00 a.m. - 12:15 a.m.

Faculty Library (Room 2326)
Yochai Benkler
Professor of Law
Yale Law School
Political Freedom: Emergence of the Networked Public Sphere
(Hard copies will only be distributed in the law school mailroom)

12:30 p.m. - 2:00 p.m.

Law Building Room 2448
*Co-sponsored by the Friday Colloquium
Howard A. Shelanski
Associate Dean and Professor of Law
Director, Berkeley Center for Law & Technology
Boalt Hall School of Law
"Antitrust Law as Mass Media Regulation: Can Merger Standards Protect the Public Interest?"

2:30 p.m. - 3:45 p.m.

Faculty Library (Room 2326)
Philip J. Weiser
Associate Professor of Law
Executive Director of Silicon Flatirons Telecommunications Program
University of Colorado School of Law
"Toward Property Rights in Spectrum: The Important and Difficult Policy Choices Ahead"

The Failure of Abstinence-Only Education: Minors Have a Right to Honest Talk About Sex by Hazel Glenn Beh, University of Hawai’i at Manoa School of Law, & Milton Diamond, University of Hawai’i at Manoa, The Pacific Center for Sex and Society
Feminist ABC’s of Sex Education by Linda McClain, Hofstra University School of Law
Moderator: Professor Ariela Dubler

10:15am-11:15am: The Interplay Between Disability and Sexuality

Legal Cross-Dressing: Sexuality and the Americans with Disabilities Act by Fedwa Malti-Douglas, Indiana University, Bloomington
Transgendered Plaintiffs and Title VII by Jennifer Levi, Western New England College, School of Law
Moderator: Professor Suzanne Goldberg

11:30am-12:30pm: Prison and Punishment

Sexual Punishments by Alice Ristroph, University of Utah, S.J. Quinney College of Law
Rethinking Prison Sex: Self-Expression and Safety by Brenda Smith, American University, Washington College of Law
Moderator: Professor Philip Genty

12:45pm: Lunch with Keynote speech by William Eskridge, Jr.
2:15pm-3:15pm: Sexuality and Marriage

Name Change: The Future of Default Rules for Marital Names by Elizabeth F. Emens, Columbia Law School
A Historical Guide to the Future of Marriage for Same-Sex Couples by Suzanne Goldberg, Rutgers School of Law - Newark
Moderator: Professor Carol Sanger

3:30pm-4:30pm: Sexual Expression

Pathology Full Circle: A History of Anti-Vibrator Legislation in the United States by Danielle Lindemann, Columbia University, Department of Sociology
The New Politics of Adultery by Brenda Cossman, University of Toronto, Faculty of Law
The Expressiveness and (Potential) Gender-Neutrality of Sexuality following Lawrence v. Texas by James Garland, Hofstra University School of Law
Moderator: Professor Elizabeth Emens

Claus on the Conception of a Constitution
Laurence Claus (University of San Diego School of Law) has posted Implication and the Concept of a Constitution (Australian Law Journal, Vol. 69, p. 887, 1995) on SSRN. Here is the abstract:

Recent decisions of the High Court of Australia have highlighted a distinction between two conceptions of written constitutions that may be applied by judicial interpreters. One treats constitutional text as defining governmental powers and limitations thereon, whilst the other, more controversially, treats the text as merely illustrating broader, unwritten principles that ultimately set the scope of governmental powers. This article analyses the distinction and traces the history of the “illustrative” conception as applied in Australian and United States constitutional adjudication.

Network effects created by the use of electronic commerce technologies may put pressure on the community of the Muslim faithful to assimilate into global markets that do not comply with the requirements of Islamic law. At the same time, however, they hold the promise of greater access to global markets constituted in a manner that comports with Islamic law. There are significant structural differences in commercial transactions conducted in conformity with Islamic law and those conducted according to Western secular norms. As a result, the automation of Islamic commercial transactions will require the development and implementation of significantly different technical standards. Many Muslim countries now have low penetration rates for electronic commerce technologies, and the development of technical standards to support automated transaction processing in a manner that conforms to Islamic law does not appear to be a policy priority in those countries. If such standards are developed, then strategy and relative bargaining power will determine whether secular Western organizations wishing to trade with Islamic organizations are required to implement both Western and Islamic technologies in order to gain access to markets in Islamic nations, or organizations in Islamic nations are required to implement both in order to gain access to global markets.

Supreme Court citation of the opinion of foreign courts, a phenomenon common worldwide, is much more controversial in the United States than abroad. This controversy is difficult to explain solely with reference to the judicial-activism and separation-of-powers arguments that usually frame debates over the propriety of foreign citations. Supreme Court opinions are replete with references to extra-legal sources; why single out foreign case law as deserving of special condemnation? The answer, this essay suggests, derives in large part from the prominence of European case law from the civil-law tradition among the cited foreign precedents. As such the current controversy stands as a reincarnation of 19th-century divisions over the transplantation of continental-inspired legislation. Throughout the 1800s, key jurisprudential figures (e.g. Kent, Lieber, Carter, and Dillon) argued that civil-law-based legal reforms, such as codification and social legislation, conflicted with the tenets of American constitutionalism. The current foreign-precedent controversy is, in many ways, a mirror image of older debates. In the 19th- and early 20th-century story, the main mechanism for the transplantation of continental-modeled law into the United States—and hence the main threat for those worried about foreign influence—was legislation. Opponents asserted that there was an inherent antagonism between American constitutionalism and legislation inspired by continental political systems. Today, the roles have reversed, with some judges serving as agents of legal transplantation (notably from Europe) and some legislators seeking to guard the gates with campaigns against foreign citations, among other tools. This thesis finds support in the prominence of references to core differences between Europe and America within the current debate. The essay offers two such examples. The first is arguments advanced on behalf of a congressional resolution condemning citations to foreign law, and the second is Justice Scalia's response in Printz v. United States to Justice Breyer's comments on the structure of federalist institutions on the continent.

In this essay, we examine the reasons why the economic analysis of law has not flourished in European countries as it has in the U.S. In particular, we focus on three European countries - the United Kingdom (U.K.), Germany, and France. We argue that differences in culture, the legal system and the academy have led to differing degrees of success of the law and economics movement in each country. We speculate that, although there is currently less interest in the economic analysis of the law in Europe than in the United States, European interest could dramatically increase if scholars adopt more communitarian analyses aimed at analyzing legislative polices rather than judicial decisions.

Summary judgment is a significant reason for the dramatic decline in the number of jury trials in civil cases in federal court. Judges extensively use the device to clear the federal docket of cases deemed meritless. Recent scholarship even has called for the mandatory use of summary judgment prior to settlement. While other scholars question the use of summary judgment in certain types of cases (e.g., civil rights), all scholars and judges assume away a critical question: whether summary judgment is constitutional. The conventional wisdom is that the Supreme Court settled the issue a century ago in Fidelity & Deposit Company v. United States. But a review of that case reveals that the conventional wisdom is wrong: the constitutionality of summary judgment has never been resolved by the Supreme Court. This Article is the first to examine the question and takes the seemingly heretical position that summary judgment is unconstitutional. The question is governed by the Seventh Amendment which provides that “[i]n Suits at common law, . . . the right of trial by jury shall be preserved, and no fact tried by jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.” The Supreme Court has held that “common law” in the Seventh Amendment refers to the English common law in 1791. This Article demonstrates that no procedure similar to summary judgment existed under the English common law and also reveals that summary judgment violates the core principles of the English common law. The Article concludes that despite the perceived necessity and uniform acceptance of the device, summary judgment is unconstitutional. The Article also responds to likely objections and explores the far-ranging ramifications of this conclusion.

I just read this very provocative and remarkably persuasive piece. Highly recommended for proceduralists!

University College, London, Colloquium in Legal and Social Philosophy: Ronald Dworkin, ‘The concepts of Law’
University College, London, Faculty of Laws: Dr Phoebe Okowa, QMUL, ‘The use of force in the Congo’
Villanova Law: Christopher Borgen, St. John's University School of Law
USC-Caltech Participatory Democracy Workshop: Archon Fung (The John F. Kennedy School of Government, Harvard University), Practical Reasoning About Institutions: Governance Innovations in the Development of Democratic Theories
Oxford Public Law Discussion Group: Paul Craig, Human Rights, the EU, the ECHR and the Bosphorus Case
Oxford Criminology Seminar Series: Yvonne Jewkes, A prison Tale: The Role of Empathy and Emotion in the Formulation of Knowledge
NYU Legal History: James Whitman, Professor, Yale Law School, "The Origins of Reasonable Doubt: Religious Roots of the Criminal Trial"

Vanderbilt Comparative Corporate Governance Seminar: Katarina Pistor, Columbia Law School
University of Texas Law: Sanford Levinson, University of Texas Law, Disenchantment & Desire: What is to be Done
University of Alabama Law: Hans Baade, University of Texas
University College, London, Faculty of Laws: The Honourable Justice Michael Kirby AC CMG and Professor Ronald Dworkin QC, Al-Kateb v Godwin (Decision of the High Court of Australia, 6 August 2004
Northwestern Constitutional Theory: Stephen Siegel, Distinguished Research Professor of Law, DePaul University, "The Origin of the Compelling State Interest Test and Strict Scrutiny"
NYU Law: Mattias Kumm.
Marquette Law: Coleen Barger, University of Arkansas at Little Rock, In-Classroom Assessment of Students
London School of Economics, Centre for Philosophy of the Natural and Social Sciences: John Worrall (LSE), Evidence and ethics in medical trials
University of London School for Advanced Science, Institute of Philosophy Conference and Seminar Series: Larry Temkin (Rutgers), Thinking About the Needy.
Lewis & Clark Law: Erik Luna, University of Utah, Deadly Judgment: Discretion, Discrimination, and Error in American Capital Punishment
Chicago IP Colloquium: Professor Joseph Liu, Boston College Law School, Copyright and Consumer-Enabling Technologies
Hofstra Law: Anita Allen, University of Pennsylvania Law School, “Disrobed: The Constitution of Modesty”

Metaphysics, Ethics, & Politics in the Thomistic and Analytic Traditions
A summer graduate philosophy seminar sponsored by the Witherspoon Institute from August 7-11, 2006 on the campus of Princeton University
http://www.winst.org/philosophy.htm
Faculty
Alexander R. Pruss, Georgetown University
Mark C. Murphy, Georgetown University
Nicholas Rescher, University of Pittsburgh
Gabrielle De Anna, University of Udine
Michael Gorman, Catholic University of America
Description
Metaphysics, Ethics, & Politics in the Thomistic and Analytic Traditions is a summer graduate seminar devoted to promoting intellectual exchange between the philosophical tradition inspired by Thomas Aquinas, broadly understood, and contemporary analytic philosophy. The modern revival of Thomism in Catholic circles began with the 1879 encyclical letter Aeterni Patris, and was exemplified in the work of Jacques Maritain and Etienne Gilson during the first half of the twentieth century. Beginning in the mid-twentieth century, that revival was broadened as philosophers such as Peter Geach, Elizabeth Anscombe, Anthony Kenny, and Philippa Foot began to draw upon the insights of Aquinas (and Aristotle) within the context of contemporary analytic philosophy. The work of these philosophers and others has shown how the Thomistic tradition can inspire original, valuable contributions to contemporary debates, and also can often call into question how the very issues of contemporary philosophy are themselves conceived.
This seminar hopes to further this engagement between traditions by offering faculty and graduate students a forum for focused study and discussion of Thomism, as well as providing a convivial environment that initiates long-term scholarly collaboration. The topics addressed by the seminar will range broadly from metaphysics to political and legal theory, encouraging consideration of how the various problems and subfields of philosophy intertwine. Perhaps most importantly, the seminar aims to be more than a conventional academic conference by contributing in some small way to a renewal of contemporary philosophical practice; it is hoped that "philosophy" can again be understood as a way of life ­ an ideal which includes but transcends argumentation. The seminar plans to include faculty and graduate students who have a wide variety of philosophical interests, but who share the conviction that explicating the historical tradition of Thomistic-Aristotelianism and engaging contemporary philosophy are complementary roles in a common endeavor. The seminar is open to all graduate students in philosophy. (Other graduate students who can demonstrate a strong background in philosophy may also apply.)
More Information
Applications must be submitted by April 15, 2006. Please visit http://www.winst.org/philosophy.htm or contact ThomisticSeminar@gmail.com for more details.

Call for Papers: RECLAIMING THE FIRST AMENDMENT: A CONFERENCE ON CONSTITUTIONAL THEORIES OF MEDIA REFORM
2007 will mark the 40th anniversary of Jerome Barron's Harvard Law Review article, "Access to the Press - A New First Amendment Right." Although First Amendment theories of access, like First Amendment arguments for government regulation of the mass media to ensure a diversity of viewpoints, have had a mixed reception in the courts, there is growing concern today that consolidated media ownership presents a serious challenge to democracy.
To commemorate the publication and reinvigorate legal and policy work on the First Amendment as a basis for media access and structural reform, Hofstra Law School, along with the Brennan Center for Justice at NYU School of Law, is organizing a one-day conference on Jan. 19, 2007, titled Reclaiming the First Amendment: A Conference on Constitutional Theories of Media Reform. The major papers from the conference will be published in a symposium issue of the Hofstra Law Review.
The conference will be structured around four panels that will consist of one keynote speaker, one responder, and two additional presentations. We are pleased that four distinguished scholars have agreed to join us as keynoters: C. Edwin Baker of the University of Pennsylvania Law School, Robert McChesney of the University of Illinois, Lili Levi of the University of Miami Law School, and Ellen Goodman of Rutgers Law School. Jerome Barron will be the luncheon speaker.
Papers may address any aspect of the First Amendment and the mass media, including cable, print, broadcasting, and the Internet. For example:

? The Supreme Court noted 62 years ago that the First Amendment “rests on the assumption that the widest possible dissemination of information from diverse and antagonistic sources is essential to the welfare of the public.” How might this principle be harnessed to address contemporary concerns?
? Is the “scarcity” rationale still viable? Can it form the basis for structural regulation beyond broadcasting?
? Are there other theories to support a First Amendment right to diverse ownership or that provide a basis for structural regulation?
? How strong is the First Amendment argument for resisting regulation?
? What First Amendment standards should apply to content-neutral, content-based, and viewpoint-based media regulation?
? What relevance does Barron's article have for media reform today?
? What impact do changes in communications technologies have on issues of access and how should the law respond?

This list is by no means exclusive. Papers may be of any length but should further the conference goal of proposing innovative policy and legal approaches, and be suitable for law review publication.
We invite paper proposals of 750-1,000 words, to be submitted in electronic form to Dawn.M.Marzella@Hofstra.edu by April 1, 2006. Decisions will be made by May 1, and the authors selected will be invited to participate as panelists. Completed papers will be due November 1, 2006.
For further information, contact: Professor Eric M. Freedman, Hofstra Law School, LAWEMF@Hofstra.edu, tel. 516-463-5167 or Marjorie Heins, Brennan Center for Justice, Marjorie.Heins@NYU.edu, tel. 212-992-8847

Thank you to the University of Virginia
. . . and especially David Tabachnick and Kevin Kordana for a wonderful conference on political philosophy and private law.
Travel to and from Charlottesville was especially difficult and time consuming, and as a result, I am behind on some blog related tasks. Regular posts should resume this evening.

International Conference on the Environment : Survival and Sustainability19 to 24 February 2007
Nicosia - Northern Cyprus
We would like to welcome you to participate at the International Conference entitled “Environment: Survival and Sustainability” which will take place on 19 - 24 February 2007, at the Near East University. The aim will be to create a multi-disciplinary discussion forum where experts from various disciplines-from academia as well as policymaking/implementation side-from countries the world over will discuss environmental issues with a view to provide a better understanding of environmental issues, stimulate scientific discussion and develop policy-relevant approaches and analysis for decision-makers.
The Conference aims to bring together around 2000 scholars and researchers from over 90 countries around the world to discuss environmental issues from a variety of
perspectives. The deadline for abstracts/proposals is 15 April 2006.
Preliminary List of Major Topics:

Yale Workplace Theory & Policy: NANCY FRASER, Political Science, The New School, Reframing Justice in a Globalizing World
University of Texas Law: Ronen Avraham (Northwestern), The Impact of Tort Reforms on Medical Malpractice awards, 1991-1998 (with Albert Yoon)
Aristotelian Society (London): Jennifer Saulm Pornography, Speech Acts and Context
American University: Program on Intellectual Property and the Public Interest
Columbia Law & Economics: Michael Abramowicz, The George Washington University Law School, "Patent Auctions"

Tuesday, February 21

Vanderbilt Comparative Corporate Governance Seminar: Katarina Pistor, Columbia Law School
University of Texas Law: Sanford Levinson, University of Texas Law, Disenchantment & Desire: What is to be Done
University of Alabama Law: Hans Baade, University of Texas
University College, London, Faculty of Laws: The Honourable Justice Michael Kirby AC CMG and Professor Ronald Dworkin QC, Al-Kateb v Godwin (Decision of the High Court of Australia, 6 August 2004
Northwestern Constitutional Theory: Stephen Siegel, Distinguished Research Professor of Law, DePaul University, "The Origin of the Compelling State Interest Test and Strict Scrutiny"
NYU Law: Mattias Kumm.
Marquette Law: Coleen Barger, University of Arkansas at Little Rock, In-Classroom Assessment of Students
London School of Economics, Centre for Philosophy of the Natural and Social Sciences: John Worrall (LSE), Evidence and ethics in medical trials
University of London School for Advanced Science, Institute of Philosophy Conference and Seminar Series: Larry Temkin (Rutgers), Thinking About the Needy.
Lewis & Clark Law: Erik Luna, University of Utah, Deadly Judgment: Discretion, Discrimination, and Error in American Capital Punishment
Chicago IP Colloquium: Professor Joseph Liu, Boston College Law School, Copyright and Consumer-Enabling Technologies
Hofstra Law: Anita Allen, University of Pennsylvania Law School, “Disrobed: The Constitution of Modesty”

Wednesday, February 22

University College, London, Colloquium in Legal and Social Philosophy: Ronald Dworkin, ‘The concepts of Law’
University College, London, Faculty of Laws: Dr Phoebe Okowa, QMUL, ‘The use of force in the Congo’
Villanova Law: Christopher Borgen, St. John's University School of Law
USC-Caltech Participatory Democracy Workshop: Archon Fung (The John F. Kennedy School of Government, Harvard University), Practical Reasoning About Institutions: Governance Innovations in the Development of Democratic Theories
Oxford Public Law Discussion Group: Paul Craig, Human Rights, the EU, the ECHR and the Bosphorus Case
Oxford Criminology Seminar Series: Yvonne Jewkes, A prison Tale: The Role of Empathy and Emotion in the Formulation of Knowledge
NYU Legal History: James Whitman, Professor, Yale Law School, "The Origins of Reasonable Doubt: Religious Roots of the Criminal Trial"

Thursday, February 23

William Mitchell College of Law: Heidi M. Hurd, Judges, the Law, and Morality
Yale Law, Economics & Organizations: Professor Charles Calomiris, Columbia, International Business, Relationship Banking and the Pricing of Financial Services
Vanderbilt Law: David Hyman, University of Illinois College of Law, "Do Defendants Pay What Juries Award?: Post-Verdict Haircuts in Texas Medical Malpractice Caes, 1988-2003"
UCLA Legal Theory Workshop: Daniel Markovits (Yale).
University of Texas Alexander Watkins Terrell Centennial Lectureship: John Langbein, Yale University, Understanding the Death of the Private Pension Plan in the United States
University of Texas Colloquium on Constitutional and Legal Theory: Rick Pildes (NYU) "Separation of Parties, not Powers"
University of Michigan Law & Economics: Michael Abramowicz, George Washington, Patent Auctions
University College, London, Faculty of Laws: Dr Oliver Gerstenberg (University of Leeds), ‘The European Convention of Human Rights and Domestic Constitutional Discourse: A Clash of Absolutes’
Oxford Public International Law Discussion Group: Charles Proctor, The Recent US-China Currency Dispute in International Law: Trade and Monetary Relations
Oxford Financial Law Discussion Group: Frederique Dahan and John Simpson, Secured Credit Legal Issues in Transition Economies
Oxford Law Faculty: Sarah Worthington, Why distinguish between property and contract?
Ohio State Law: Arthur Greenbaum, The Role of Judges in Reporting Lawyer Misconduct
NYU Colloquium on Tax Policy and Public Finance: Alan Auerbach, Berkeley Economics Department, "Who Bears the Corporate Tax? A Review of What We Know."
King's College, London: Rebecca Bennett (Manchester), Should we eradicate disability: a reply to harris.
UC Berkeley, Kadish Center: Rae Langton, Professor of Philosophy, MIT, SPEAKER'S FREEDOM AND MAKER'S KNOWLEDGE
Georgetown Law & Philosophy: Jonathan Marks (Greenwall Fellow, Georgetown and Johns Hopkins)
Fordham Law: Eric A. Posner, Kirkland & Ellis Professor of Law, University of Chicago Law School, "Emergencies and Democratic Failure"
Florida State Law: Tracy Higgins, Fordham University Regulatory Feminism
Brooklyn Law: David Skeel, University of Pennsylvania Law School, Who Makes the Rules for Hostile Takeovers, and Why? & The Peculiar Divergence of US and UK Takeover Regulation
Boston University Law: David Seipp, "Big Legal History and the Hundred-Year Test"

Friday, February 24

Villanova Law: Wendy Scott, Tulane University School of Law
University of Texas Law: John Langbein, Yale University, Trust Law as Regulatory Law: The Unum/Provident Scandal and Judicial Review of Benefit Denials under ERISA
University of Georgia International Law Colloquium: Karen Knop (University of Toronto), "Enemies and Outlaws: War and the Public/Private Citizen"
University of Georgia Law: Anthony Alfieri (Miami), The Fall of Legal Ethics and the Rise of Risk Management
UCLA Media, Entertainment, and Culture Workshop:

9:30 a.m. - 10:45 a.m.

Faculty Library (Room 2326)
Timothy Wu
Professor of Law
Columbia Law School
"The Copyright Paradox-Understanding Grokster"

11:00 a.m. - 12:15 a.m.

Faculty Library (Room 2326)
Yochai Benkler
Professor of Law
Yale Law School
Political Freedom: Emergence of the Networked Public Sphere
(Hard copies will only be distributed in the law school mailroom)

12:30 p.m. - 2:00 p.m.

Law Building Room 2448
*Co-sponsored by the Friday Colloquium
Howard A. Shelanski
Associate Dean and Professor of Law
Director, Berkeley Center for Law & Technology
Boalt Hall School of Law
"Antitrust Law as Mass Media Regulation: Can Merger Standards Protect the Public Interest?"

2:30 p.m. - 3:45 p.m.

Faculty Library (Room 2326)
Philip J. Weiser
Associate Professor of Law
Executive Director of Silicon Flatirons Telecommunications Program
University of Colorado School of Law
"Toward Property Rights in Spectrum: The Important and Difficult Policy Choices Ahead"

The Failure of Abstinence-Only Education: Minors Have a Right to Honest Talk About Sex by Hazel Glenn Beh, University of Hawai’i at Manoa School of Law, & Milton Diamond, University of Hawai’i at Manoa, The Pacific Center for Sex and Society
Feminist ABC’s of Sex Education by Linda McClain, Hofstra University School of Law
Moderator: Professor Ariela Dubler

10:15am-11:15am: The Interplay Between Disability and Sexuality

Legal Cross-Dressing: Sexuality and the Americans with Disabilities Act by Fedwa Malti-Douglas, Indiana University, Bloomington
Transgendered Plaintiffs and Title VII by Jennifer Levi, Western New England College, School of Law
Moderator: Professor Suzanne Goldberg

11:30am-12:30pm: Prison and Punishment

Sexual Punishments by Alice Ristroph, University of Utah, S.J. Quinney College of Law
Rethinking Prison Sex: Self-Expression and Safety by Brenda Smith, American University, Washington College of Law
Moderator: Professor Philip Genty

12:45pm: Lunch with Keynote speech by William Eskridge, Jr.
2:15pm-3:15pm: Sexuality and Marriage

Name Change: The Future of Default Rules for Marital Names by Elizabeth F. Emens, Columbia Law School
A Historical Guide to the Future of Marriage for Same-Sex Couples by Suzanne Goldberg, Rutgers School of Law - Newark
Moderator: Professor Carol Sanger

3:30pm-4:30pm: Sexual Expression

Pathology Full Circle: A History of Anti-Vibrator Legislation in the United States by Danielle Lindemann, Columbia University, Department of Sociology
The New Politics of Adultery by Brenda Cossman, University of Toronto, Faculty of Law
The Expressiveness and (Potential) Gender-Neutrality of Sexuality following Lawrence v. Texas by James Garland, Hofstra University School of Law
Moderator: Professor Elizabeth Emens

Introduction
Are the unborn human persons? What is the difference between legal and moral personhood? What does it mean to say that a corporation is a legal person? Do the most intelligent animals deserve the rights of moral or legal persons? These questions are likely to arise sooner or later for most law students. This entry in the Legal Theory Lexicon explores the idea of personhood, moral, legal, and human. As always, this post is intended as an introduction for law students (especially first-year law students) with an interest in legal theory.Persons and Humans
The terms "human" and "person" have related meanings, but as used by most legal theorists, these terms are distinct. Here's one definition of "human":

a bipedal primate mammal (Homo sapiens)

And person is sometimes defined as a "human" or "individual". But "person" has another meaning, one that distinguishes the concept of person from the concept of human. Suppose, for example, an intelligent alien species were to arrive on Earth (or humans were to encounter them elsewhere). If the members of the aliens displayed evidence of human-like intelligence and could communicate with us (e.g. were able to master a human natural language, such as English), then we might be tempted to treat members of this species as morally and/or legally entitled to the same rights as humans.
Consider, for example, the aliens Chewbacca or Yoda in the Star Wars movies. Neither Chewbacca nor Yoda is a member of the species homo sapiens, yet both are treated as the moral and legal equivalents of humans in the Star Wars universe.
Let us stipulate then, that term "human" is a biological term, which refers to all the members of the species homo sapiens and that the term "person" is a normative term, which refers to a moral and/or legal status that creatures or other bearers of human-like capacities can share with normal adult humans.
The categories of human and person are involved in some of the most contentious debates in moral, political, and legal theory. Prime among these is the abortion debate. One move that can be made in the abortion debate is simply to deny the distinction between human and person. So it might be the case that the relevant moral and legal category is "human person" and that all members of the species homo sapiens members of this category. Or it might be argued that "human" and "person" are morally and legally distinction categories. If so, it is possible that "fetuses" are unborn humans, but that they are not yet "persons."Legal, Moral, and Natural Persons
So far, I have been treating the category of personhood or persons as a single category, but this need not be the case. We can distinguish between three kinds of persons--natural, moral, and legal. It is possible that the not all legal persons are natural persons and vice versa; the category of moral persons is clearly distinct from that of legal persons, but might be considered identical with the category of natural persons.
Examples will help. Corporations and governmental units are legal persons--they have legal rights and responsibilities and can sue and be sued, but we do not say that corporations are natural or moral persons. A corporation is not a natural person, because it is nonnatural in the relevant sense. Corporations are artificial or nonnatural because they are the creations of the law. Likewise, all humans are usually considered "natural persons," but not all humans have the full bundle of rights and responsibilities associated with legal persons. For example, infants and incompetents may be unable to sue in their own name and may not bear full legal responsibility for their acts.Legal Personhood
The classical discussion of the idea of legal personhood is found in John Chipman Gray's The Nature and Sources of the Law. He began his famous discussion, "In books of the Law, as in other books, and in common speech, 'person' is often used as meaning a human being, but the technical legal meaning of a 'person' is a subject of legal rights and duties." The question whether an entity should be considered a legal person is reducible to other questions about whether or not the entity can and should be made the subject of a set of legal rights and duties. The particular bundle of rights and duties that accompanies legal personhood varies with the nature of the entity. Both corporations and natural persons are legal persons, but they have different sets of legal rights and duties. Nonetheless, legal personhood is usually accompanied by the right to own property and the capacity to sue and be sued.
Gray reminds us that inanimate things have possessed legal rights at various times. Temples in Rome and church buildings in the middle ages were regarded as the subject of legal rights. Ancient Greek law and common law have even made objects the subject of legal duties. In admiralty, a ship itself becomes the subject of a proceeding in rem and can be found "guilty." Christopher Stone recently recounted a twentieth-century Indian case in which counsel was appointed by an appellate court to represent a family idol in a dispute over who should have custody of it. The most familiar examples of legal persons that are not natural persons are business corporations and government entities.
Gray's discussion was critical of the notion that an inanimate thing might be considered a legal person. After all, what is the point of making a thing-- which can neither understand the law nor act on it--the subject of a legal duty? Moreover, he argued that even corporations are reducible to relations between the persons who own stock in them, manage them, and so forth. Thus, Gray insisted that calling a legal person a "person" involved a fiction unless the entity possessed "intelligence" and "will."
Can we say that corporations possess "intelligence" and "will"? The answer to that question is controversial among legal theorists. The orthodox position is that the corporation itself is a legal fiction; the humans who make up the corporation may have intelligence and will, but the corporation itself does not. But some might argue that the properties of the corporation are not reducible to the properties of the individuals who make up the corporation. Corporations may have "a mind of their own," at least according to some theorists.Moral Personhood
"Legal personhood" is controversial, but "moral personhood" is one of the most contested ideas in contemporary legal, moral, and political theory. This large debate is not easy to summarize, but one of the crucial issues concerns the criteria for moral personhood. What attributes would make some life form (or even a robot) a moral person? Here are some of the possibilities:

Intelligence--One possibility is that the possession of "intelligence" (at some threshold level) is the criterion for moral personhood. Of course, "intelligence" itself is hardly a transparent concept.

Autonomy--Another idea is that persons must be capable of autonomy. But what is autonomy? One notion is that autonomous beings must be capable of second-order beliefs and motivations. That is, autonomy requires that one be able to have beliefs about one's beliefs and desires about one's desires.

Communication--Yet another possibility is that personhood requires the ability to communicate with others or to use language. On this criterion, it is possible that some higher primates might qualify for personhood--although the empirical evidence on primate use of human language is disputed.

Self-Awareness--Finally, some have argued that the criterion for moral personhood should be self-awareness or reflexive consciousness. To be a person, I must be aware of the my own consciousness.

This is not an exhaustive list of the criteria for moral personhood. Moreover, these criteria might be combined in various ways. For example, it might be argued that only an intelligent, autonomous, language-using, self-conscious being would be a full moral person.Conclusion
"Personhood" is a fundamental notion for legal theorists. "Legal personhood" plays an important role in legal doctrine, and "moral personhood" plays a fundamental role in moral and political theory. The purpose of this post has been to give you a very rough sense of some of the issues that surround these concepts. More reading can be found in the bibliography.Bibliography

John Chipman Gray, The Nature and Sources of the Law (Roland Gray ed., MacMillan 1921)

What would life be like without the state? What justifies the state? Who should rule? How much liberty should the citizen enjoy? How should property be justly distributed? This book examines the central problems involved in political philosophy and the past attempts to respond to these problems. Jonathan Wolff looks at the works of Plato, Hobbes, Locke, Rousseau, Mill, Marx, and Rawls (among others), examining how the debates between philosophers have developed, and searching for possible answers to these provocative questions. His final chapter looks at more recent issues, particularly feminist political theory.

Privatization has been something of a watchword in the years since the fall of the Soviet Union. The rationales for privatization are usually economic, stressing the comparative advantage of market regimes over bureaucratic ones: that private property gives owners the incentives to make better investment decisions, and that a market economy is more flexible and nimble in satisfying people's wants.
This article, however, leaves the economic arguments to one side and instead takes up the political arguments for privatization, many of which have a long history. The paper maps modern deregulatory efforts onto a series of six longstanding arguments to the effect that property and commerce are the most important rights of all in supporting democratic governance; the idea is to see whether the modern efforts tend to confirm or disconfirm the arguments for private property's centrality in a democracy. The paper concludes that the picture is somewhat mixed: some privatization measures support the political arguments for property, while others do not. The lesson is that political reform cannot rest on property and privatization alone, but needs to take place on a variety of fronts, of which, of course, privatization may be an important component.

Greetings from Charlottesville
I'm attending the conference on Political Philosophy and Private Law at the University of Virignia, today & tomorrow. Because of travel woes, I was unable to blog this morning, but postings should resume their regular flow tomorrow. The conference has been absolutely terrific so far, with a wonderful and deeply interesting paper by Jody Kraus, not to mention Arthur Ripstein, whose writings about the connection between private law, Kant, and Rawls are surely among the very finest. I hope to post some comments about the conference this evening!
For a detailed conference schedule, scroll up for Friday. Saturday's schedule will appear tomorrow morning with the Saturday Calendar.

Animal welfare advocates claim that animal exploitation and humane treatment can coexist with respect to the use of animals for food, experimentation, hunting, and other human benefits. These advocates recognize that existing anticruelty statutes, which embody the idea that animals should not subjected to unnecessary suffering, have many deficiencies - most notably, as Professor Gary Francione has pointed out, they include wholesale exemptions for institutional uses of animals. However, these advocates nevertheless claim that anticruelty statutes can be reformed, either legislatively or judicially, to narrow these exemptions and ascribe more weight to an exploited animal's interest in not suffering.
This article reveals that, although legislatures could certainly require better treatment of exploited animals, a law that does not challenge the underlying exploitation itself can at best prevent suffering that is in excess of what is required to carry out the exploitation. As the very nature of animal exploitation requires the infliction of tremendous suffering, the amount of excess suffering that a reformed anticruelty statute could prevent is minimal. This article also reveals that courts do not have the discretion to interpret anticruelty statutes more broadly for a variety of reasons, including the constitutional requirement of fair warning. This article concludes that anticruelty statutes, while noble in theory, are ineffective in practice precisely because they do not challenge the underlying exploitation of animals, but instead focus on humane treatment.
This article provides greater support for the argument that animal advocates should adopt Professor Francione’s rights-based strategy that eschews unworkable ideas of humane treatment and instead focuses on abolition.

This essay examines age eligibility rules in the National Football League (“NFL”) and the National Basketball Association (“NBA”), offers analysis of related antitrust and labor law issues, and shares perspective on underlying policies. As a matter of background, the NFL and the NBA are the only major sports organizations that prohibit players from entrance until a prescribed period after high school graduation. Major League Baseball, the National Hockey League, NASCAR, professional tennis, professional golf, and professional boxing have no such rules. Individuals can also partake in professional acting, theater, music, and other entertainment professions without satisfying a period after high school graduation. The same is true of those who enlist in the U.S. armed forces and in various occupations that require maturity and discipline. Such an employment landscape raises inquiry as to why NFL and NBA teams, unlike so many other employers, would agree to boycott any candidate, regardless of talent or skill, until a prescribed period after high school graduation. This inquiry enjoys heightened interest when considering that NFL and NBA teams are incomparable employers, as players may not play in other leagues for similar compensation.

Brooklyn Law School: Law: Marianne Constable, Professor of Rhetoric, University of California at Berkeley, Husband-Killing in Chicago in the Late 19th/Early 20th Century
UCLA Legal History: Claire Priest, Northwestern University School of Law, "Creating An American Property Law: Alienability and Its Limits in American History"
NYU Legal History: Reva Siegel, Nicholas deB Katzenbach Professor of Law, Yale Law School, “Constitutional Culture, Social Movement Conflict, and Constitutional Change: The Case of the De Facto ERA”
University of Texas Law: Stanley Chodorow, Department of History, University of California--San Diego, The Distribution of Law Books in European Libraries in the 12th Century
Cardozo Law: David Nimmer, Improving and Creating Procedures for Fair Use. Additional presentation by Marjorie Heins. Commentaries from Hugh Hansen, Margaret Jane Radin
Villanova Law: Brad Wendel, Cornell Law School
William Mitchell Law, Public Square Lecture Series: Hauwa Ibrahim - Quest for Justice in Nigeria.

Alces on the Impossibility of Contract
Peter A. Alces (College of William and Mary - Marshall-Wythe School of Law) has posted The Moral Impossibility of Contract on SSRN. Here is the abstract:

In efforts to formulate the deontological or consequentialist conceptions of Contract, or to demonstrate that Contract is neither wholly explicable in terms of one or the other type of theory, claims are necessarily made about the nature of Contract as a body of doctrine, claims about what doctrine is. Now I do not mean simply that theorists disagree about what a particular doctrine entails, such as what a court should do in order to apply, for example, the consideration, frustration or unconscionability doctrines correctly. I acknowledge that reasonable minds disagree about the substance and constituents of those common law Contract doctrines. That is not my point. Instead, I am curious about what it means for a set of rules (say, the set of rules that fixes the parameters of “agreement”) to be doctrine, the phenomenon that theory would try to explain. The function of theory is heuristic. The object of theory is either normative or positive. The best theorists are able to blur the distinction, often for rhetorical purposes. Legal theory (at least in some of its iterations) depends upon a posited conception of doctrine (and doctrine, too, is heuristic). That is, theory either explains or corrects doctrine. To accomplish that, legal theory is dependent upon a theory of legal doctrine. Contract theory, whether deontological, consequentialist, or pluralist, begins and must end with the doctrine, must have something to say about doctrine that serves a heuristic purpose (as well as, perhaps, other purposes). My interest is not so much with what Contract theorizing tells us, heuristically, about Contract doctrine; my concern is more with what Contract theory, in all of its extant phases, assumes about the nature of Contract doctrine. In this paper, I engage each of the foregoing observations about the theory-doctrine dynamic and try to say something important concerning Contract theory by drawing conclusions about the relationships among them.

We distinguish our form of government and our legal system from others by our commitment to the rule of law. In the criminal law, in particular, this commitment is aggressively enforced through a series of doctrines that taken together demand a prior legislative enactment of a prohibition expressed with precision and clarity, traditionally bannered as the legality principle. But it is argued in this article that the traditional legality principle analysis conflates two distinct issues: one relating to the ex ante need for fair notice, the other to the ex post concern for fair adjudication. There are in fact two different kinds of legality - rules legality and adjudication legality - that suggest different, and sometimes conflicting, conclusions about the proper formulation and application of the legality doctrines. The criminal law would be better served, it is argued, by giving these two principles independent recognition and application.
Several rationales are offered in support of the traditional legality principle: providing fair notice, gaining compliance with criminal law rules, including effective deterrence and avoiding over-deterrence (chilling effect), reserving the criminalization authority to the legislature, increasing uniformity in application, and reducing the potential for abuse of discretion. What has not been previously understood is that the first three rationales address how the criminal law should perform its ex ante function of announcing the rules of conduct, a function that is carried out primarily by the objective requirements of offenses definitions and by justification defenses. And the last three address how the criminal law should perform its ex post function of adjudicating a violation of the rules of conduct, a function that is carried out primarily by the culpability requirements of offenses definitions and by excuse defenses.
Thus, to effectively further the rationales of legality, the criminal law should recognize two principles - rules legality and adjudication legality - and should apply each of the six legality doctrines differently according to that function of the criminal law being performed by the criminal law rule to which it is being applied. A failure to adjust application of legality doctrines according to the function of the criminal law rule to which they are being applied, as is common in some aspects of current law, undermines the success of the purposes we seek to advance by our commitment to legality.

This essay on Justice O'Connor's concurring opinion in Lawrence v. Texas argues that her framing of an explicit heightened rational basis standard potentially carries great importance for equal protection law. In Lawrence, the opinion of the Court held that the Texas criminal sodomy law violated the individual's liberty interest in engaging in private intimate conduct. Justice O'Connor concurred solely on equal protection grounds, in a brief but pithy opinion which sought to explain why she found the Texas statute unconstitutional under normally deferential rational basis review. She asserted that certain kinds of cases, where there was evidence of animus or bias infecting the legislative process, triggered heightened rationality review.
Professor Hunter argues that the O'Connor opinion has the potential not only to clarify inadequately reasoned gay rights decisions such as Romer v. Evans, but also to allow the Court to take responsibility for a shadowy lower mid-level standard of review that it has in fact been deploying, erratically, for three decades. Using documents only recently made available to the public as part of Justice Blackmun's papers, Professor Hunter traces the internal debates within the Court on levels of scrutiny in equal protection cases. She proposes that courts and scholars conceptualize the current equal protection claims by non-suspect groups as proceeding in a constitutional interregnum, suffused with complex political dynamics and tricky questions of judicial legitimacy.
This essay considers the formulation of heightened rational basis review in Justice O'Connor's concurrence as a response to the reality that this interregnum, in light of the conservatism of the federal judiciary, could continue for a significant period of time. Moreover, unlike the period when early civil rights cases were being litigated before Congress had ever enacted significant civil rights laws, this interregnum occurs at a time of wide expectation that if equality claims are legitimate, they will succeed in legislatures. Is it appropriate for judges to approach adjudication as if it is an attempt to predict subsequent legislative action? The very nature of an interregnum suggests uncertainty and disruption, yet law promises order and fairness. Professor Hunter's essay considers the O'Connor proposal for heightened rational basis in this context.

Selmi on Disparate Impact
Michael Selmi (The George Washington University Law School) has posted Was the Disparate Impact Theory a Mistake? (UCLA Law Review, Vol. 53, p. 701, 2006) on SSRN. Here is the abstract:

The disparate impact theory has long been viewed as one of the most important and controversial developments in antidiscrimination law. In this article, Professor Selmi assesses the theory’s legacy and challenges much of the conventional wisdom. Professor Selmi initially charts the development of the theory, including a close look at Griggs v. Duke Power Co. and Washington v. Davis, to demonstrate that the theory arose to deal with specific instances of past discrimination rather than as a broad theory of equality. In the next section, Professor Selmi reviews the success of the theory in the courts through an empirical analysis and concludes that the theory has had a strikingly limited impact outside of the context of written employment tests and is, in fact, an extremely difficult theory on which to succeed. In the final section, Professor Selmi contends that whatever gains the disparate impact theory has produced could likely have been obtained through other means, particularly in large urban cities, and that the theory may have had the unintended effect of limiting our conception of intentional discrimination. Disparate impact theory has always been seen as beginning where intentional discrimination ends, and by pushing an expansive theory of impact we were left with a truncated theory of intentional discrimination, one that continues to turn on animus and motive. Rather than a new legal theory of discrimination, what was needed, Professor Selmi concludes, was a greater societal commitment to remedying inequities and the ultimate mistake behind the theory was a belief that legal theory could do the work that politics could not.

Cheryl Boudreau, Dept of Political Science, University of California, San Diego
The Mind of a Child: Rethinking Competency, Culpability and Accountability in a Juvenile Court
Professor Katherine Hunt Federle, Paul Skendelas, Professor of Law and Director of Justice for Children Project, Moritz College of Law, Ohio State University, Columbus, Ohio, and Assistant Public Defender, Franklin County, Ohio, Pictures, Words and the Law
Professor Christina Spiesel, Senior Research Scholar in Law, Yale Law School, Is Law Practical?
Dr Claire Valier, Lecturer in Law, Birkbeck, University of London

2.00pm SESSION VII: Behavioural Biology and Economics: Similarities and Differences in Intersections with Law

Professor Owen Jones, Professor of Law and Biological Sciences, Vanderbilt University
Should we be free not to be free to ruin ourselves? What ‘Law and Behavioural Economics’ and ‘Law and Neuro-economics’ add to the debate
Dr Florian Wagner-von Papp, Lecturer in Laws, UCL, Judicial Constructivism and Artificial Intelligence Applied to Law
Dr Enrique Caceres, Institute for Legal Research, Autonomous University of Mexico

4.00pm SESSION VIII: Learning, Assessment and the Gendered Brain

Catherine Iorns Magallanes, Senior Lecture in Laws, Victoria University of Wellington
Race, the Brain and the Law
Professor Terry Maroney, Law School, University of Southern California, and Dr. Elizabeth A. Phelps, New York University, Department of Psychology, Psychological Trauma and the law on Human Trafficking
Dr Natalia Walter, Consultant, Project REACH, The Trauma Center and Dr Jose Hidalgo, Psychology Department, University of Seville

This Article focuses on the role, if any, that a legislative body’s “bad” intent in passing election laws should play when courts assess the constitutionality of those laws. For purposes of this Article, by “bad” intent in the election law area, I mean a legislative intent to protect incumbents, a political party, or the two major political parties, from political competition. I argue that, despite the arguments of some leading election law scholars, including Professor Richard H. Pildes, proof of such bad intent should be neither necessary nor sufficient for an election law challenge to succeed, though it should be relevant in getting courts to take a “hard look” at election laws. Rather than focus on intent, courts should primarily examine the effect of election laws on the rights of individuals and groups, and, when the effects are severe enough, carefully balance those bad effects against the stated and proven interests of the state in the election law.
Part I of this Article offers three reasons why proof of bad legislative intent should not be necessary to strike down an election law. First, bad election laws can emerge even when the legislature has noble intentions. Second, bad legislative intent sometimes is going to be difficult to prove. Legislators often will an incentive to hide incumbency or party-protecting intent. Third, a rule premised on proof of bad legislative intent will be easy to circumvent, and could quickly become useless rule for policing anti-competitive election laws.
Part II argues that proof of bad legislative intent should not be sufficient for courts to strike down election laws on constitutional grounds because the test will allow for more arbitrary and pretextual judicial decisionmaking. The risk exists because it is sometimes difficult to draw the line between good and bad legislative intent, even among the class of laws that appear to be driven, at least in part, by anticompetitive aims.
Part III then discusses my alternative to an intent-based test. I argue for a careful balancing of asserted state interests against the rights of individuals and groups to engage in collective action for political purposes. Although courts have purported to engage in balancing, balancing has been tepid (or even a sham) and its protections against legislative self-dealing largely illusory. I offer recent examples of the courts’ weak balancing efforts. Courts should engage in closer means-ends scrutiny.
Finally, Part IV uses the analysis developed in the first three parts to offer some very tentative thoughts about how the arguments against reliance on bad legislative intent in the election law context might apply to other constitutional claims, such as Establishment Clause, free speech, and race discrimination claims.

This essay considers the growing interest in the methodology of jurisprudence in the context of a broader examination of the relationship between legal theory and the practice of law. Attention is drawn to the particular puzzles of how theory can both be independent of and yet inform practice, and how methodology can take a similar stance towards theory. Through a detailed analysis of the methodological positions adopted by Dworkin, Raz, and Coleman and Simchen, the conclusion is reached that methodology is not a resource capable of offering an independent assessment of the merits of competing theories.
Mainstream jurisprudential discussion is traced through the Hart-Dworkin debate to assumptions on the relationship between theory and practice initially adopted by Hart and sustained by subsequent contributors. The morbid condition of a prominent part of contemporary jurisprudence is identified with an unwarranted elevation of theory over practice. A more fruitful role for theory is suggested, in expounding the controversies met in the practice of law and considering the potential that exists for resolving them. It is suggested that this approach breaks down an artificial divide between descriptive and normative jurisprudence.
A number of ancillary matters are discussed in the essay including: semantic (and metasemantic) approaches to legal theory, Dworkin's semantic sting, the distinction between methodological and theoretical elements of Law's Empire, Dickson on the 'indirectly evaluative approach', the position of Hart in his Postscript, and Raz's split theory of legal reasoning and law.

Although arbitration is often characterized as a form of private adjudication, prominent arbitration theorists have argued that it is better understood as a species of contract. In this contractarian model of arbitration, the arbitrator is understood to function as a contract reader rather than a surrogate judge. The arbitrator’s task is to give effect to the parties’ agreement, not to determine rights and liabilities according to rules of law. While this model was originally used to conceptualize labor and commercial arbitration, it has driven the development of the law governing arbitration in all contexts. Across cases, courts decline to review arbitral awards except to ensure that the arbitrator actually interpreted the agreement, with the result that arbitrators have the freedom to ignore otherwise applicable rules of law.
This article examines the implications of the contractarian model, concluding that rigorous application of the model should lead to greater scrutiny of arbitral awards in at least some cases. Under the contractarian model, the award is the equivalent of a contract term agreed upon by the parties ex ante. When an arbitrator issues an award that is contrary to the outcome dictated by the governing law, the parties may be understood to have contracted around the law. The arbitration literature typically condones that result as compelled by the principle of party autonomy. I argue that generally applicable rules of contract law limit the extent to which parties may avoid law through arbitration. If a particular outcome would be unenforceable as an exculpatory contract term, then an arbitrator’s award reaching that outcome should not command the deference that courts routinely give. I suggest that a higher standard of judicial review should presumptively apply in the class of cases raising the most significant exculpatory contract issues.

Orphan Works: New Prospects for a Solution
Friday, February 24, 2006
2:00 pm – 4:00pm
Reception to Follow
Registration: (Click Here) or call 202-274-4148
(Note: Registration is appreciated, but not required. Walk-In guests are welcome.)
Location
Washington College of Law
4801 Massachusetts Ave. N.W. ~ Room 602
Washington, DC 20016
On Friday afternoon, February 24, From 2:00 to 4:00 PM, the Program on Intellectual Property and the Public Interest at the Washington College of Law will present a timely program on "Orphan Works: New Prospects for a Solution."
The last few years have seen an increasingly recognition that the problem of "orphan works" is a real impediment to the realization of the constitutional goal of copyright law: the "Progress of Science and useful Arts." When artists, historians, museums, libraries and others forgo culturally significant uses of copyright works because their ownership cannot be traced, the public loses. On January 23, after a thorough and searching review, the United States Copyright Office delivered an important report on this topic (with legislative recommendations) to the chairs of the relevant congressional committees.
The panel discussion on February 24 will consider the report, its recommendations and the potential for early legislation. Joining in the discussion will be representatives of many groups that have been active in the "orphan works" debate, including: Prue Adler (Association of Research Libraries), Jonathan Band (counsel to the Library Copyright Alliance), Kathleen Franz (American University History Dept.), Robert Kasunic (Copyright Office), Jay Rosenthal (counsel to the Recording Artists Coalition), Jason Schultz (Electronic Frontier Foundation), Eric Schwartz (Smith & Metalitz), Rebecca Tushnet (Georgetown Law Center), Jennifer Urban (USC Law School, who filed comments for documentary filmmakers), and a representative of the Recording Industry Association of America -- among others.
This will be an important opportunity to explore this critical dimension of copyright's future.

Alexander and Solum on Kramer
Larry Alexander (University of San Diego) and I have posted Popular? Constitutionalism? (Harvard Law Review 2005) on SSRN. Here is the abstract:

Larry Kramer has written an awesome book, and we mean awesome in its original and now archaic sense. The People Themselves is a book with the capacity to inspire dread and make the blood run cold. Kramer takes the theory du jour, popular constitutionalism (or popular sovereignty), and pushes its central normative commitments to their limits. The People Themselves is a book that says boo to the ultimate constitutional authority of the courts and hooray to a populist tradition that empowers Presidents to act as Tribunes of the People and has even included constitutional interpretation by mob. Along the way, Kramer offers a rich and powerful interpretation of American constitutional history, exposing ideas that have long been submerged, and stimulating a fundamental reappraisal of the contemporary ascendancy of the United States Supreme Court as the ultimate and final expositor of constitutional meaning.
This Review offers a critical assessment of The People Themselves. In Part II, we provide a brief recapitulation of the main themes of The People Themselves, tracing the story of popular constitutionalism from before the Revolution through the founding era to the present day. We then undertake in Part III a careful examination of Kramer's central concept by answering the question, What is popular constitutionalism? From analytic reconstruction, we move to normative assessment in Part IV, which states the case in favor of judicial supremacy and against popular constitutionalism. In Part V, we conclude this Review with observations about the paradoxical nature of Kramer's discussion of popular acceptance of judicial supremacy and an observation about the value of The People Themselves: Kramer's book makes an important contribution to constitutional theory by pushing the idea of popular constitutionalism to its limits.

This was incredibly fun to write--especially because Larry Alexander is a wonderful co-author! As always, I greatly appreciate comments and reactions from the readers of Legal Theory Blog.

UCLA Law: Nicole Garnett, What a Strange Place to Put a Church: The Political Economy of "Just Compensation"
University of Texas Law: Scott Baker (North Carolina) "Deterrence, Lawsuits, and Litigation Outcomes Under Court Errors
Georgetown Law & Philosophy: Paul Robinson (Law, University of Pennsylvania)
Case Western University School of Law: Adam Mossoff, "Who Cares What Thomas Jefferson Thought About Patents: Reevaluating the Patent 'Privilege' in Historical Context."Updated: NYU Law: Lee Fennell, ""Property Unbound: Strategy and Choice in Metropolitan Neighborhoods" & "Property in Neighbors?" from "Properties of Concentration."
University of Alabama Law: Sharon Davies, Ohio State University
Southern Illinois Law: Conference, Telecomm Act Retrospective
University College, London, Conference, Law, Mind, and Brain:

DAY ONE - 13th FEBRUARY 2006

8.30am REGISTRATION
9.15am SESSION I: The Problems with Blaming

Professor Theodore Blumoff, Mercer University School of Law, The Neuroscience of Punishment
Dr Ben Seymour, Dr Tania Singer, Professor Ray Dolan, Institute of Neurology, UCL, The Evolution of Retribution
Judge Morris Hoffman, District Judge, Denver, Colorado, Why Distinguish ‘Mental" and ‘Physical’ Illness in the Law of Involuntary Treatment?
Professor John Dawson, Professor of Law, University of Otago, Dr George Szmukler,
Dean, Institute of Psychiatry, King’s College London.

11.30am SESSION II: Legal Implications of The New Neuroscience: Further Thoughts.

Professor Stephen J. Morse, Professor of Law & Professor of Psychology and Law in Psychiatry, University of Pennsylvania, The Origins of Mental State: Legal and Cultural Developments across Ten Centuries
Professor Deborah Denno, Professor of Law, Fordham University School of Law, Problems of Mind, Body and Brain in the Criminal Law
Dr Lisa Claydon, Senior Lecturer, Head of Criminal Justice Unit, University of West of England, Reflections of Responsibility
James Grant, Lecturer in Law, University of the Witwatersrand

2.15pm SESSION III: Moral Intelligence: Mind, Brain and the Law

Professor Atahualpa Fernandez - Department of Philosophy & Social Work, University of the Islas Baleares/Spain & Amazonia University-Unama/PA/Brazil and Public Prosecutor –MPU/ Brazil and Camilo José Cela-Conde - Director, Department of Philosophy & Social Work/ University of the Islas Baleares/Spain, The Implications of Brain Imaging Studies for the Law
Dean Mobbs & Professor Chris Frith, Dept of Imaging Neuroscience, Institute of Neurology, UCL and Dr Hakwan Lau, Dept of Psychology, University of Oxford, How do Humans think about Right and Wrong? Neural Correlates of Normative Judgement
Dr Kristin Prehn, Dept of Psychology, Humboldt University, Berlin, Virtuous Foundations: The Law, Moral Reasoning and the Neural Mechanisms of Moral Cognition
Dr William Casebeer, Naval Postgraduate School, Monterey, California
4.30pm SESSION IVA: Why do good people steal Intellectual Property? Looking for answers in the Brain
Professor Oliver Goodenough, Professor of Law, Vermont Law School and the Gruter Institute, Accountability and Legal Responses to Medical Error
Professor Edward Dauer, Dean Emeritus, Sturm College of Law of the University of Denver, and Visiting Professor, California Western School of Law, San Diego, Equality in Exchange Revisited: Why some unequal bargains are (somewhere) considered as unfair and others (elsewhere)
Dr Bart Du Laing, Centre for Legal Theory, Katholieke Universiteit, Brussels, Just and Efficient Compensation for Governmental Takings for Property
Professor Jeffrey E Stake, Indiana University, School of Law

Professor Melanie Williams, Professor of Law, University of Wales, Swansea, Happiness and Law: Hedonics, Positive Psychology, Affective Neuroscience and Paternalism
Professor Peter H Huang, Professor of Law, Temple University, Member, School of Social Science, Institute for Advanced Study, Freedom of Memory
Professor Adam Kolber, University of San Diego, School of Law

Conference Announcement: Political Philosophy and Private Law at Virginia
I want to shout out an extra big plug for this conference, which I am really looking forward to. Here's the announcement:

Virginia Law Review Conference to Focus on Political Theory, Private Law

Scholars and students will gather to focus on aspects of political liberalism and jurisprudential issues in private law Feb. 17-18 in the Caddell Conference Room as part of the Virginia Law Review Symposium, "Contemporary Political Theory and Private Law." Conference papers address contract theory, theories of tort and property and their relationship to issues concerning distributive justice, and the role of public reason in the private law.
The symposium is co-sponsored by the Dean's Intellectual Life Fund and the John M. Olin Program in Law and Economics. Conference papers and their respective comments will be published in a symposium issue of the Virginia Law Review.

Civil liberty and privacy advocates have criticized the USA PATRIOT Act (“Act”) on numerous grounds since it was passed in the wake of the World Trade Center attacks in 2001. Two of the primary targets of those criticisms are the Act’s “sneak-and-peek” search provision, which allows law enforcement agents to conduct searches without informing the search’s subjects, and the business records provision, which allows agents to secretly subpoena a variety of information – most notoriously, library borrowing records. Without attending to all of the ways that critics claim the Act burdens privacy, I examine whether those two controversial parts of the Act, the section 213 “sneak-and-peak” search and the section 215 business records “gag-rule” provisions, burden privacy as critics charge. I begin by describing the two provisions. Next, I explain why those provisions don’t burden privacy on standard philosophical accounts. Moreover, I argue that they need not conflict with the justifications for people’s claims to privacy, nor do they undermine the value of privacy on the standard accounts. However, rather than simply concluding that the sections don’t burden privacy, I argue that those provisions are problematic on the grounds that they undermine the value of whatever rights to privacy people have. Specifically, I argue that it is important to distinguish rights themselves from the value that those rights have to the rights-holders, and that an essential element of privacy rights having value is that privacy right-holders be able to tell the extent to which they actually have privacy. This element, which is justified by the right-holders’ autonomy interests, is harmed by the two provisions.

Privatization has been something of a watchword in the years since the fall of the Soviet Union. The rationales for privatization are usually economic, stressing the comparative advantage of market regimes over bureaucratic ones: that private property gives owners the incentives to make better investment decisions, and that a market economy is more flexible and nimble in satisfying people's wants.
This article, however, leaves the economic arguments to one side and instead takes up the political arguments for privatization, many of which have a long history. The paper maps modern deregulatory efforts onto a series of six longstanding arguments to the effect that property and commerce are the most important rights of all in supporting democratic governance; the idea is to see whether the modern efforts tend to confirm or disconfirm the arguments for private property's centrality in a democracy. The paper concludes that the picture is somewhat mixed: some privatization measures support the political arguments for property, while others do not. The lesson is that political reform cannot rest on property and privatization alone, but needs to take place on a variety of fronts, of which, of course, privatization may be an important component.

Funk on Intimidation and the Internet
William F. Funk (Lewis & Clark Law School) has posted Intimidation and the Internet (Penn State Law Review, Forthcoming) on SSRN. Here is the abstract:

In 2002, in the case of Planned Parenthood of the Columbia/Willamette, Inc. v. American Coalition of Life Activists, the Ninth Circuit Court of Appeals, sitting en banc, upheld the district court's decision that the American Coalition of Life Activists, and several individuals associated with it, had violated the Freedom of Access to Clinics Entrances Act (FACE) by maintaining a website entitled the Nuremberg Files. The Nuremberg Files was a website that contained a list of names including those of doctors who performed abortions. Some names on these lists were crossed out, while others were in light grey rather than black. A legend on the website explained that the persons whose names were listed in black were working, while those listed in grey were wounded, and those whose names were struck out were fatalities. A major issue in the case was whether it was a violation of the First Amendment to restrain the defendants from maintaining this website. Of the eleven judges on the panel, six found that the website was not protected speech under the First Amendment, while five found that it was. Commentary on the decision in both the press and the academy was generally negative, viewing the decision as a setback for First Amendment values.
This article argues that while the Nuremberg Files site was not protected by the First Amendment, the reasons given by the judges in the majority on the Ninth Circuit were not the correct reasons for that conclusion. Rather, this article suggests that current First Amendment doctrine does not directly address the problem raised by the Nuremberg Files site: speech that is neither a direct threat nor an incitement, but nevertheless—because of its particular character, including its publication on the Internet—is intended to and does have the immediate effect of intimidating persons from engaging in lawful, even constitutionally protected, behavior.
In reaching this conclusion, this article will try to make three points. First, fear is a social evil that the state may protect against, an evil distinct from the actual danger of an event occurring. Second, the Internet is special; it is not "like" any other traditional media. Third, First Amendment analysis should not be limited to categorizing particular activities in certain predetermined boxes, such as true threats, incitement, defamation, fighting words, etc.; rather, it should be governed more by principles that take account of the balancing implicit in current First Amendment doctrine and categories.

Administrative agencies frequently use guidance documents to set policy broadly and prospectively, in areas ranging from Education Department Title IX enforcement to FDA regulation of direct-to-consumer pharmaceutical advertising. These policy statements closely resemble those agencies issue in quasilegislative notice-and-comment rules. Though the guidances generally are developed with little participation and are often immune from judicial review, they can evoke significant changes in behavior from those the agencies regulate. A number of commentators have guardedly defended guidance documents as better than nothing. Though they lack some important procedural safeguards, these documents can help agencies supervise low-level employees and supply valuable information to regulated entities regarding how an agency will implement a program. Thus far, however, this debate on administrative process has largely ignored the distinct and substantial interests of regulatory beneficiaries. These are people who expect to benefit from government regulation of others, such as pharmaceutical consumers, environmental users, and workers who seek safe workplaces. When agencies make policy informally, these regulatory beneficiaries suffer particular losses to their ability to participate in the agency's decision and to invoke judicial review. The article accordingly argues that when regulatory beneficiary interests are considered, the case for procedural reform of guidance documents is considerably stronger. The article then overviews some possible solutions.

Professor Theodore Blumoff, Mercer University School of Law, The Neuroscience of Punishment
Dr Ben Seymour, Dr Tania Singer, Professor Ray Dolan, Institute of Neurology, UCL, The Evolution of Retribution
Judge Morris Hoffman, District Judge, Denver, Colorado, Why Distinguish ‘Mental" and ‘Physical’ Illness in the Law of Involuntary Treatment?
Professor John Dawson, Professor of Law, University of Otago, Dr George Szmukler,
Dean, Institute of Psychiatry, King’s College London.

11.30am SESSION II: Legal Implications of The New Neuroscience: Further Thoughts.

Professor Stephen J. Morse, Professor of Law & Professor of Psychology and Law in Psychiatry, University of Pennsylvania, The Origins of Mental State: Legal and Cultural Developments across Ten Centuries
Professor Deborah Denno, Professor of Law, Fordham University School of Law, Problems of Mind, Body and Brain in the Criminal Law
Dr Lisa Claydon, Senior Lecturer, Head of Criminal Justice Unit, University of West of England, Reflections of Responsibility
James Grant, Lecturer in Law, University of the Witwatersrand

2.15pm SESSION III: Moral Intelligence: Mind, Brain and the Law

Professor Atahualpa Fernandez - Department of Philosophy & Social Work, University of the Islas Baleares/Spain & Amazonia University-Unama/PA/Brazil and Public Prosecutor –MPU/ Brazil and Camilo José Cela-Conde - Director, Department of Philosophy & Social Work/ University of the Islas Baleares/Spain, The Implications of Brain Imaging Studies for the Law
Dean Mobbs & Professor Chris Frith, Dept of Imaging Neuroscience, Institute of Neurology, UCL and Dr Hakwan Lau, Dept of Psychology, University of Oxford, How do Humans think about Right and Wrong? Neural Correlates of Normative Judgement
Dr Kristin Prehn, Dept of Psychology, Humboldt University, Berlin, Virtuous Foundations: The Law, Moral Reasoning and the Neural Mechanisms of Moral Cognition
Dr William Casebeer, Naval Postgraduate School, Monterey, California
4.30pm SESSION IVA: Why do good people steal Intellectual Property? Looking for answers in the Brain
Professor Oliver Goodenough, Professor of Law, Vermont Law School and the Gruter Institute, Accountability and Legal Responses to Medical Error
Professor Edward Dauer, Dean Emeritus, Sturm College of Law of the University of Denver, and Visiting Professor, California Western School of Law, San Diego, Equality in Exchange Revisited: Why some unequal bargains are (somewhere) considered as unfair and others (elsewhere)
Dr Bart Du Laing, Centre for Legal Theory, Katholieke Universiteit, Brussels, Just and Efficient Compensation for Governmental Takings for Property
Professor Jeffrey E Stake, Indiana University, School of Law

Professor Melanie Williams, Professor of Law, University of Wales, Swansea, Happiness and Law: Hedonics, Positive Psychology, Affective Neuroscience and Paternalism
Professor Peter H Huang, Professor of Law, Temple University, Member, School of Social Science, Institute for Advanced Study, Freedom of Memory
Professor Adam Kolber, University of San Diego, School of Law

Cheryl Boudreau, Dept of Political Science, University of California, San Diego
The Mind of a Child: Rethinking Competency, Culpability and Accountability in a Juvenile Court
Professor Katherine Hunt Federle, Paul Skendelas, Professor of Law and Director of Justice for Children Project, Moritz College of Law, Ohio State University, Columbus, Ohio, and Assistant Public Defender, Franklin County, Ohio, Pictures, Words and the Law
Professor Christina Spiesel, Senior Research Scholar in Law, Yale Law School, Is Law Practical?
Dr Claire Valier, Lecturer in Law, Birkbeck, University of London

2.00pm SESSION VII: Behavioural Biology and Economics: Similarities and Differences in Intersections with Law

Professor Owen Jones, Professor of Law and Biological Sciences, Vanderbilt University
Should we be free not to be free to ruin ourselves? What ‘Law and Behavioural Economics’ and ‘Law and Neuro-economics’ add to the debate
Dr Florian Wagner-von Papp, Lecturer in Laws, UCL, Judicial Constructivism and Artificial Intelligence Applied to Law
Dr Enrique Caceres, Institute for Legal Research, Autonomous University of Mexico

4.00pm SESSION VIII: Learning, Assessment and the Gendered Brain

Catherine Iorns Magallanes, Senior Lecture in Laws, Victoria University of Wellington
Race, the Brain and the Law
Professor Terry Maroney, Law School, University of Southern California, and Dr. Elizabeth A. Phelps, New York University, Department of Psychology, Psychological Trauma and the law on Human Trafficking
Dr Natalia Walter, Consultant, Project REACH, The Trauma Center and Dr Jose Hidalgo, Psychology Department, University of Seville

Wednesday, February 15

Brooklyn Law School: Law: Marianne Constable, Professor of Rhetoric, University of California at Berkeley, Husband-Killing in Chicago in the Late 19th/Early 20th Century
UCLA Legal History: Claire Priest, Northwestern University School of Law, "Creating An American Property Law: Alienability and Its Limits in American History"
NYU Legal History: Reva Siegel, Nicholas deB Katzenbach Professor of Law, Yale Law School, “Constitutional Culture, Social Movement Conflict, and Constitutional Change: The Case of the De Facto ERA”
University of Texas Law: Stanley Chodorow, Department of History, University of California--San Diego, The Distribution of Law Books in European Libraries in the 12th Century
Cardozo Law: David Nimmer, Improving and Creating Procedures for Fair Use. Additional presentation by Marjorie Heins. Commentaries from Hugh Hansen, Margaret Jane Radin
Villanova Law: Brad Wendel, Cornell Law School
William Mitchell Law, Public Square Lecture Series: Hauwa Ibrahim - Quest for Justice in Nigeria.

Thursday, February 16

University of Illinois College of Law, Criminal Law Colloquium: Samuel R. Gross, Michigan Law School, Exonerations in the United States 1989 Through 2003.
Oxford Jurisprudence Discussion Group: Amit Pundik, Statistical Evidence: An Investigation of Its Nature and Its Usage in the Criminal Context
Stanford Law & Economics: John J. Donohue III (Yale Law School), "Uses and Abuses of Empirical Evidence in the Death Penalty Debate"
University of Michigan Law & Economics: Miriam Bitton, Irell & Manella LLP, A New Outlook on the Economic Dimension of the Database Protection Debate
University of North Dakota Indian Law: Patrice H. Kunesh, "The Cultural Context of Banishment in a Modern Tribal Justice System"
NYU Law, Colloquium on Tax Law & Public Finance: Lee Anne Fennell, Illinois, “Taxation Over Time.”
Fordham Law: Dorothy E. Roberts, Northwestern University School of Law, The Impact of High Rates of Child Welfare Agency Involvement in African American Neighborhoods
Georgetown Intellectual Property: Olufunmilayo Arewa, Copyright, Borrowing, and Unfair Use
Yale Legal Theory Workshop: Stephen Greenblatt, Harvard (English).
Boston University Law: Bob and Ann Seidman.
Florida State University Law: Elizabeth Trujillo, Detroit-Mercy.
UC Berkeley, Kadish Center: Tommie Shelby, John L. Loeb Associate Professor of Social Sciences and of African and African American Studies, Harvard University, JUSTICE, DEVIANCE, AND THE DARK GHETTO
William Mitchell Law, National Security Forum: Judge Gerald Rosen, U.S. District Court.
Marquette Law: Mark Umbreit, Minnesota, RJ Movement: Int’l Developments
Ohio State Law: Adrienne Dale Davis, University of North Carolina, The Sexual Economy of American Slavery

Introduction
Early on in law school, law students begin to realize that legal norms are not all cut from the same cloth. Some rules provide "bright lines," others "fuzzy lines," and yet others, no lines at all. The "reasonable person" test in tort law constrains in a very different way than does the rule against perpetuities in property. That is, legal norms differ in extent to which they constrain those who are charged with applying them.
We can slice and dice legal norms in various ways. In this post, we will investigate the idea that legal norms can be sorted into three general classes: rules, standards, and principles. Let's stipulate to the following definitions to get the discussion off the ground:

Rules are the most constraining and rigid. Once a rule has been interpreted and the facts have been found, then the application of the rule to the facts decides the issue to which it is relevant.

Standards provide an intermediate level of constraint. Standards guide decisions but provide a greater range of choice or discretion; for example, a standard may provide a framework for balancing several factors.

Principles are even less constraining. Principles provide mandatory considerations for judges. Whereas, standards identify an exhaustive set of considerations for adjudication or policy making, a principle identifies a nonexhaustive set, leaving open the possibility that other considerations may be relevant to the decision.

This post provides an introduction to rules, standards, and principles for law students (especially first-year law students) with an interest in legal theory.Rules
Although the phrase "legal rule" can be used in a broad sense, to refer to all legal norms, whether they be case in the form of a bright-line rule, a standard that in the form of a balancing test, or even an abstract principle, there is also a narrower sense of "rule" that distinguishes rules from standards and principles.
Rules themselves vary--let's use hard and soft to refer to the poles of a continuum. A rule is harder if both the conditions for its application and the consequences that follow are defined by bright-line distinctions that admit of easy application. The rule that disqualifies persons who are not 35 years of age is quite hard or rigid. Rules become softer as they criterion for the application and/or the consequences to which they lead become fuzzier. If the constitution had limited the presidency to "adults," then there could have been cases in which the question whether a particular candidate was unclear. Twelve year olds are clearly not adults but twenty-five year olds clearly are. In between, the necessity of drawing a somewhat arbitrary line makes the "adult" rule relatively softer than the "35-year old" rule.Standards
Standards are less constraining than even "soft" rules. Whereas a rule defines a triggering condition and a consequence, a standard may define a set of relevant considerations and options. One familiar example of a standard is provided by the fairness component of the International Shoe test for personal jurisdiction. That test requires a court to find that a state's assertion of personal jurisdiction violates the Due Process Clause on the basis of a give factor balancing test, which refers to the defendant's interest, the plaintiff's interest, the interest of the forum, judicial efficiency and economy, and substantive policy concerns.
Like rules, standards themselves vary in their capacity to guide and constrain the decision-making process. Some standards give the decision maker substantial guidance, by specifying relatively specific and concrete factors the decision maker should consider and the relative weight or importance of those factors. Other standards are much more open ended, requiring consideration of factors that are general and abstract. Standards that refer to "all the circumstances," "the interests of justice," or "equitable considerations" are particularly soft. Standards that require the evaluation of "cost to the defendant" or "serious invasions of privacy" are relatively harder, providing greater constraint and guidance.
By way of illustration, consider eligibility for the presidency once again. A rule based approach might limit eligibility to persons of a certain age or to "adults." A standard might specify that the only persons who are "sufficiently mature" may occupy the office of President. This standard is relatively open-ended, and it might disqualify some sixty-year olds from the presidency but allow some 20 year olds to serve.Principles
Principles are quite different from both rules and standards--at least on the basis of the definitions that we are using. Both rules and standards provide a framework that is, in theory, sufficient for resolving a particular issue in a legal dispute. But as we are using the term, a "principle" only provides guidance for the interpretation or application of a rule or standard. Principles by themselves do not resolve legal issues.
This sense of principle is illustrated by Ronald Dworkin's example of the principle that no one should be allowed to profit from their own wrong, drawn from the case of Riggs v. Palmer, 22 N.E. 188 (N.Y. 1889). In that case, the statute of wills would have allowed a murderer to inherit from his victim, but the New York Court of Appeals concluded that the statute should be given an equitable interpretation in light of the common law principle against wrong doers profiting from their wrongs. This principle is not a rule: the law does permit wrong doers to profit from their wrongs in a variety of circumstances. Rather, this general and abstract principle provided guidance in the interpretation and construction of a rule--in Riggs, the rule provided by the statute of wills. (This example is drawn from Ronald Dworkin's famous essay Hard Cases.)The Pros and Cons of Rules, Standards, and Principles
What are the pros and cons of rules, standards, and principles? When you have identified a candidate legal norm, when should you argue that the norm should be formulated as a rule, a standard, or a principle? In his famous 1985 article, Pierre Schlag provided this example:

In one torts casebook, for instance, Oliver Wendell Holmes and Benjamin Cardozo find themselves on opposite sides of a railroad crossing dispute. They disagree about what standard of conduct should define the obligations of a driver who comes to an unguarded railroad crossing. Holmes offers a rule: The driver must stop and look. Cardozo rejects the rule and instead offers a standard: The driver must act with reasonable caution. Which is the preferable approach? Holmes suggests that the requirements of due care at railroad crossings are clear and, therefore, it is appropriate to crystallize these obligations into a simple rule of law. Cardozo counters with scenarios in which it would be neither wise nor prudent for a driver to stop and look. Holmes might well have answered that Cardozo's scenarios are exceptions and that exceptions prove the rule. Indeed, Holmes might have parried by suggesting that the definition of a standard of conduct by means of a legal rule is predictable and certain, whereas standards and juries are not. This dispute could go on for quite some time.

Here are some basic ideas about the appropriateness of rules, standards, and principles:

Predictability and certainty. If your goal is ex ante predictability and certainty, then rules are usually the way to go. Predictability and certainty are particularly important when the law seeks to guide future conduct. For example, if we want to deter particular forms of conduct, we may do better to define the conduct in a rule (or in a set of rules) that would enable those who engage in the conduct to clearly see that the proscribed conduct is forbidden. Standards provide less guidance, and principles, almost no guidance at all.Fairness and sensitivity. On the other hand, if our goal is to insure ex post fairness, then standards may be the way to go. Standards permit flexibility and the consideration of mitigating circumstances. Rigid rules are likely to lead to unfairness in particular cases, because it may be difficult to define in advance all of the circumstances which should count as exceptions to the rule.The job of principles. Principles seem best suited for another sort of legal task. Principles cut across doctrinal fields. The same principle--one may not benefit from one's own wrong, for example--may apply in torts, contracts, and the law of wills. Thus, principles are particularly well suited to give legal form to concerns which operate in a wide variety of particular contexts.

Conclusion
Legal theorists need to be able to identify rules, standards, and principles, and more importantly, to be able to argue the pros and cons of formulating legal norms in these standard forms. The main goal of this post has been to enable you to distinguish a rule from a standard and to see that principles operate in a different way than either rules or principles. I also hope that the post has provided you with some tools that will enable you to make arguments like: “this rule would better be reformulated as a standard, because . . ." And arguments, like, “that legal norm really isn't a standard at all, it is better described as a principle.” I've provided some additional references, for those who want to pursue these ideas further.References

Thanks Tony!
I'm sure that everyone who paticipated in the symposium on unenumerated rights will join me in thanking Tony Falcone and all of the other students from the University of Pennsylvania's Journal of Constitutional Law for a extraordinarily well-organized and stimulating event. All of the panels were great, but the interchange between Frank Michelman and Randy Barnett on theories of legitimacy was a special treat--one of those wonderful moments when an academic conference comes alive as two of the most significant constitutional theorists produced the equivalent of whole pages of densely argued text in real time, right before our eyes. Cool!

Legal Theory Bookworm
The Legal Theory Bookworm recommends The Founders' Constitution, edited by Philip B. Kurland & Ralph Lerner. This is one of the great bargains in the history of really wonderful books to have on your shelf. $60.00 for the whole five volumes of documentary history of the Constitution. These days, there are a number of online databases that have greatly expanded access to the original sources and The Founder's Constitution is not as "essential" as it was when it was first published. But it is still a wonderful source for browsing and thinking about the Constitution. You can also access the materials on line--follow this link. Here's a blurb:

Hailed as "the Oxford English Dictionary of American constitutional history," the print edition of The Founders' Constitution has proved since its publication in 1986 to be an invaluable aid to all those seeking a deeper understanding of one of our nation's most important legal documents.
In this unique anthology, Philip B. Kurland and Ralph Lerner draw on the writings of a wide array of people engaged in the problem of making popular government safe, steady, and accountable. The documents included range from the early seventeenth century to the 1830s, from the reflections of philosophers to popular pamphlets, from public debates in ratifying conventions to the private correspondence of the leading political actors of the day.
These rich and varied materials are arranged, first, according to broad themes or problems to which the Constitution of 1787 has made a significant and lasting contribution. Then they are arranged by article, section, and clause of the U.S. Constitution, from the Preamble through Article Seven and continuing through the first twelve Amendments. Those seeking additional information and guidance should consult "A Reader's Advisory" and the "Introduction".
The Founders' Constitution was first published in 1986 in five oversized volumes with more than 3,200 double-column pages. Both this clothbound edition and a new CD-ROM edition are available from the University of Chicago Press. A new paperbound edition of the set is now available from the Liberty Fund, whose collaboration has made both this Web site and the CD-ROM edition possible.

This article marries the positive literature regarding judicial behavior to the normative literature regarding judicial review. Though scholars in the legal and political science academies both study judicial review, their approaches are dramatically different. Legal scholars tend to the normative, studying how judges should behave. Political scientists and political economists ask positive questions: how do judges behave, and why? The central thesis of the article is the normative literature about judicial review will remain impoverished until it takes account of the positive scholarship. Ought implies can; much of the positive literature suggests judges cannot or will not behave as normative scholars demand.
The article proceeds in four parts. After an Introduction, there is a brief historical discussion to explain why normative and positive scholarship parted company in the early 1940s. The heart of the article follows. This part is a comprehensive examination of the political influences on the constitutional judges. Beginning with the politics of the judge herself, the article then moves out in concentric circles to examine (a) the politics of judging on a collegial court; (b) the difficulties the Supreme Court faces in managing a large judicial hierarchy; (c) the influences of the other branches on Supreme Court decisionmaking; and (d) the relationship between public opinion and judicial review. In each section the goal is to show how confronting normative aspiration with political reality refocuses the questions that ought to be asked about judicial review. A subsidiary goal is to introduce normative scholars who are unaware to the vast positive literature about judicial behavior. The final part examines how the political influences described here ought to bear upon normative scholarship on judicial review.

Randy Barnett Boston University School of Law
Rebecca L. Brown Vanderbilt University Law School
James W. Ely, Jr. Vanderbilt University Law School
Stephen M. Feldman University of Wyoming College of Law
Howard Gillman University of Southern California Department of Political Science
Mark A. Graber University of Maryland, College Park, and University of Maryland School of Law
R.H. Helmholz University of Chicago Law School
Ken I. Kersch Princeton University Department of Political Science
Seth Kreimer University of Pennsylvania Law School
Frank Michelman Harvard Law School
Kermit Roosevelt University of Pennsylvania Law School
Jane Schacter University of Wisconsin Law School
Lawrence B. Solum University of Illinois College of Law
Robin West Georgetown Law Center

Georgetown Law & Economics: Chris Sanchirico, Univ. of Pennsylvania Law School Wharton Business & Public Policy Department, "Detection Avoidance"
UCLA Law: Allison Marston Danner, Vanderbilt University Law School, "When Courts Make Law: How the International Criminal Tribunals Recast the Laws of War"
Notre Dame Law: Professor William H. Page, Marshall M. Criser Eminent Scholar
University of Florida Fredic G. Levin College of Law.
Boston College Law: Shimon Shetreet, Professor of Law, The Hebrew University of Jerusalem, Faculty of Law
USC Law: FISCAL CHALLENGES: AN INTERDISCIPLINARY APPROACH TO BUDGET POLICY

10:00am-12:00pm

Panel 1: Theories of Deficits and the Regulation of Deficits
Michael Boskin
Jürgen von Hagen
"Fiscal Rules and Fiscal Performance in the EU and Japan"
Please click here for the Tables for the above paper
Jonathan Baron and Ed McCaffery
"Starving the Beast: The Psychology of Budget Deficits"
Commentator: John Matsusaka

Panel 3: State Law Issues in Budgeting
Barry R. Weingast and John J. Wallis
"Dysfunctional or Optimal Institutions?: State Debt Limitations, the Structure of State and Local Governments, and the Finance of American Infrastructure"
Juliet Musso, Elizabeth Graddy, and Jennifer Grizard
"State Budgetary Processes and Reforms-The California Story"
Jaime Calleja Alderete, Tracy Gordon and Jon Sonstelie
"Much Ado About Nothing?: Tax and Expenditure Limits and Government Responsiveness"
Commentator: David Super

Solove & Hoofnagle on Privacy Protection
Daniel J. Solove and Chris Jay Hoofnagle (The George Washington University Law School and Electronic Privacy Information Center - West Coast Office) have posted A Model Regime of Privacy Protection (Version 3.0) (Illinois Law Review, Vol. 2006, p. 357, 2006) on SSRN. Here is the abstract:

A series of major security breaches at companies with sensitive personal information has sparked significant attention to the problems with privacy protection in the United States. Currently, the privacy protections in the United States are riddled with gaps and weak spots. Although most industrialized nations have comprehensive data protection laws, the United States has maintained a sectoral approach where certain industries are covered and others are not. In particular, emerging companies known as “commercial data brokers” have frequently slipped through the cracks of U.S. privacy law. In this article, the authors propose a Model Privacy Regime to address the problems in the privacy protection in the United States, with a particular focus on commercial data brokers. Since the United States is unlikely to shift radically from its sectoral approach to a comprehensive data protection regime, the Model Regime aims to patch up the holes in existing privacy regulation and improve and extend it. In other words, the goal of the Model Regime is to build upon the existing foundation of U.S. privacy law, not to propose an alternative foundation. The authors believe that the sectoral approach in the United States can be improved by applying the Fair Information Practices - principles that require the entities that collect personal data to extend certain rights to data subjects. The Fair Information Practices are very general principles, and they are often spoken about in a rather abstract manner. In contrast, the Model Regime demonstrates specific ways that they can be incorporated into privacy regulation in the United States.

Empirical data show that, despite the significant electoral success of state court judges, elections still impact judicial decision-making, and elected judges are less consistent in their voting patterns than appointed judges. In addition, if interest in state judicial elections continues to wane and these contests are not robust, states no longer even benefits from the participatory advantages of an elective system. Using the State of Wisconsin as an example, this Article suggests that Wisconsin and other state legislatures, with the support of bar associations and academics, should revisit the historical underpinnings of judicial elections, and consider both whether electing judges conforms with the historical goals of having an elected judiciary and whether the available empirical data support the belief that elected judges can be systematically consistent and independent in the decision-making process.

This paper examines the relationship between the productivity of the U.S. Supreme Court and the age and tenure of the Supreme Court Justices. The motivation for this paper is the Supreme Court Renewal Act of 2005 (SCRA) and other recent proposals to impose term limits for Supreme Court Justices. The authors of the SCRA and others suggest that term limits are necessary because, inter alia, increased longevity and terms of service of the Justices has resulted in a decline in the productivity of the Court as measured by the number of cases accepted for review and the number of opinions issued per term. On the whole, the empirical findings of this paper do not provide clear support for this assertion.

In this six-page magazine piece, I consider how First Amendment jurisprudence accounts for the possibility of listener self-help. My starting point is the observation that, in this context, the existence of a cost-effective self-help remedy has long been taken to be a good reason to disallow government regulation meant to accomplish similar ends. Why, the courts implicitly ask, should the government be allowed to regulate speech when an offended party can just as effectively turn a blind eye? From there, I note that the opposite argument has also had purchase in court decisions: where a “captive audience” has no effective self-help mechanism by which to avoid exposure to a given communication, that absence of a plausible self-help mechanism has been accepted as an argument in favor of direct government intervention. My main contribution is to then challenge this latter notion. As I argue in the piece, the absence of plausible self-help remedies is not merely a deficiency that the government ought to be allowed to address, but also an opportunity that the government ought not be allowed to squander without justification. After all, society has a strong interest in finding ways to ensure that each of us is exposed to a wide variety of conflicting perspectives. Captive audiences often represent a relatively low-cost means by which to achieve that goal.

Participation rates in most means-tested welfare programs in the United States are low. Many low-income individuals refrain from using welfare benefits available for them, although their value of such benefits is presumably high. This Article studies the causes of forgone welfare benefits (unwelcome benefits) and the disparities in participation propensity among eligible individuals. It is shown that avoidable and unavoidable costs, states' distorted incentives, and social norms are the major sources of impediments to benefits and that most of these impediments are embedded in or result from certain legal mechanisms of the welfare system. The analysis and empirical evidence indicate that common impediments to benefits disproportionately burden the most and the least disadvantaged eligible individuals. These polarized participation patterns entail important policy implications, since the conditions of the polar groups and size of benefits forgone by them are fundamentally different. The case of the more disadvantaged individuals who forgo relatively large benefits is troubling. In contrast, the case of nearly ineligible individuals who forgo meager benefits poses the question of why such unattractive benefits are offered in the first place. The differences between the polar groups thus suggest that it is more instructive to identify and evaluate specific participation patterns, rather than to study general participation rates as performance indicators of welfare programs. Finally, the Article draws several conclusions regarding benefit levels, benefit framing, work requirements, time limits, and available means that could attain redistributive improvements.

have compiled a collection of blog posts and articles on the subject of “Academic Blogging.” I have divided them up according to the blog or online journal in which they appeared, and then followed blog protocol by listing them in reverse chronological order. The majority of the blog posts are from law professor “blawgs,” but a few are from other academic disciplines. I fully realize that this collection, completed two weeks ago, is already outdated and that there are new discussions going on. But I believe that this compendium indicates the growing importance and sophistication of the legal academic blogosphere. In this context it is relevant to ask whether law student blogs will also achieve greater respectability, and contribute something of value to legal scholarship.

Patterson & Afilalo on Trade & the Order of States
Dennis Patterson & Ari Afilalo (Rutgers University School of Law, Camden) have posted Statecraft, Trade, and the Order of States (Chicago Journal of International Law, Vol. 6, p. 725, Winter 2006) on SSRN. Here is the abstract:

The nature of the State is changing. This development will engender the need for revision of the international commercial order and necessitate a new constitutional moment. Theoreticians and planners of trade can predict not only the issues that a trade system will generate at any moment in history, but also decipher and anticipate the contours of the next generation - to do this, however, they must understand the mechanics of Statecraft and the order of states. The new order ushered in by each constitutional moment is bound to set in motion transformative mechanisms that plant the seeds of the succeeding generation. Our goal is to outline the contours of the new constitutional moment that we believe is needed, as well as the institutional and normative redirection of trade towards which we believe observers and drivers of trade should focus attention.

Rothstein & Yoon on Law School Mismatch
Jesse Rothstein and Albert Yoon (Princeton University - Department of Economics and Northwestern University - School of Law) have posted Mismatch in Law School on SSRN. Here is the abstract:

An important criticism of affirmative action policies in admissions is that they may hurt minority students who are thereby induced to attend selective schools. We use two comparisons to identify so-called mismatch effects in law schools, with consistent results. Black students attain better employment outcomes than do whites with similar credentials. Any mismatch effects on graduation and bar exam passage rates are confined to the bottom quintile of the entering credentials distribution, where selection bias is an important, potentially confounding factor. Elite law schools' use of affirmative action thus does not appear to generate mismatch effects.

Today, an economic enterprise can insulate its assets within itself. It can disperse its assets among enterprises, each an independent juridical person. It can exist independent of its shareholders. It can own itself. It can exist independent of the regulation of any singular political community. It can choose the set of regulations to which it wishes to subject clusters of assets. It can regulate itself. For the economic enterprise able to disperse assets and operations worldwide, for the enterprise that can access capital markets throughout the globe, the essential role of law of economic organizations appears to be to enhance the ability of the multinational economic enterprise to become an autonomous and self regulating entity. This short essay serves as an introduction to the construction of a theory of institutional autonomy from out of a century of debate about the nature of economic entities. The essay first re-examines the asset partitioning ideas of Hansman and Kraakman the context of the multinational enterprise. It suggests that asset partitioning can be usefully understood as fleshing out the contours of the way in which organizational law shapes enterprise autonomy for creditors. The essay then re-examines the corporate personality analysis of Iwai to suggest that in a global context, Iwai's insights suggest the possibility of enterprise autonomy from shareholders. The essay then considers the perverse utility of the ancient territorial principle and the principle of regulatory hierarchy. Applied in a global context these principles suggest the possibility of enterprise autonomy from the state. Pulling these three puzzle pieces together, the essay suggests that the nexus of multinational enterprises and globalization provides a foundation for the emergence of self-conscious autonomous self-regulating economic entities.

Storrow on Judicial Discretion and Wills
Richard F. Storrow (Pennsylvania State University - The Dickinson School of Law) has posted Judicial Discretion and the Disappearing Distinction Between Will Interpretation and Construction (Case Western Reserve Law Review, Vol. 56, No. 65, 2005) on SSRN. Here is the abstract:

In its recently completed Restatement (Third) of Property, Wills and Other Donative Transfers, the American Law Institute determines that the distinction between will interpretation and will construction is no longer tenable. The distinction has been prominent in the American will interpretation tradition. It holds that when a will's language is not plain, courts may consider extrinsic evidence for the purpose of resolving ambiguities arising from, for example, problems identifying the named beneficiaries or the described property. If such interpretation fails to reveal the testator's intent and ambiguity persists, courts then resort to rules of construction - presumptions that allow a court to attribute an intent to the written instrument. Arguing that the current judicial practice is to consider actual and presumed intention simultaneously, the new Restatement rejects the view that interpretation and construction are discrete parts of a sequential process. It proposes a one-step process in which courts will consider extrinsic evidence and rules of construction simultaneously. Professor Storrow argues that the new Restatement formulation of will construction is misguided. First, Storrow reveals that the judicial practice cited in justification of the new formulation is employed primarily in cases involving disputes over the quantum of estates - cases that, because of their peculiar context, have historically received treatment different from those cases involving the problems with identification that the law of will interpretation was designed to address. Second, through the lens of a recent case that interpreted the will of a decedent who owned vast holdings of mineral-rich land, Storrow demonstrates how the new Restatement formulation vests courts with excessive discretion and virtually invites them to flout the principle that, in every wills case, locating and carrying out the testator’s intention is the primary and paramount concern.

Robertson on Schiavo
John A. Robertson (University of Texas Law School) has posted Schiavo & Its (In)Significance (Stetson Law Review, Forthcoming) on SSRN. Here is the abstract:

The question of removing Teri Schiavo’s feeding tube electrified the country in March, 2005. Florida, like most states, had adopted a substituted judgment paradigm for decisionmaking for incompetent patients. Under that approach the case appears to have been correctly decided, and should have been resolved after final review by the Florida courts. By reframing the case as one of starvation of a conscious person with a brain injury, lawyers for Teri Schiavo’s parents were able to generate massive public support from right-to-life and disability rights groups. This led to additional litigation and both state and national legislative attempts to overturn the results of an on-going judicial proceeding. These events demonstrate both the strengths and weaknesses of the substituted judgment paradigm, and the power of the right-to-life movement in judicial and policy decisions at the end of life. In the end the Schiavo case will have little significance in changing the law of end-of-life care. But it does show the influence that “culture of life” forces will exert on the legal and policy issues raised by biotechnology.

Law, Mind, and Brain at University College London
February 14 & 15, 2006
DAY ONE - 13th FEBRUARY 2006
8.30am REGISTRATION
9.15am SESSION I:
The Problems with Blaming
Professor Theodore Blumoff, Mercer University School of Law
The Neuroscience of Punishment
Dr Ben Seymour, Dr Tania Singer, Professor Ray Dolan, Institute of Neurology, UCL
The Evolution of Retribution
Judge Morris Hoffman, District Judge, Denver, Colorado
Why Distinguish ‘Mental" and ‘Physical’ Illness in the Law of Involuntary Treatment?
Professor John Dawson, Professor of Law, University of Otago, Dr George Szmukler, Dean, Institute of Psychiatry, King’s College London
11.15am COFFEE BREAK
11.30am SESSION II:
Legal Implications of The New Neuroscience: Further Thoughts.
Professor Stephen J. Morse, Professor of Law & Professor of Psychology and Law in Psychiatry, University of Pennsylvania
The Origins of Mental State: Legal and Cultural Developments across Ten Centuries
Professor Deborah Denno, Professor of Law, Fordham University School of Law
Problems of Mind, Body and Brain in the Criminal Law
Dr Lisa Claydon, Senior Lecturer, Head of Criminal Justice Unit, University of West of England
Reflections of Responsibility
James Grant, Lecturer in Law, University of the Witwatersrand
1.30pm LUNCH
2.15pm SESSION III:
Moral Intelligence: Mind, Brain and the Law
Professor Atahualpa Fernandez - Department of Philosophy & Social Work, University of the Islas Baleares/Spain & Amazonia University-Unama/PA/Brazil and Public Prosecutor –MPU/ Brazil and Camilo José Cela-Conde - Director, Department of Philosophy & Social Work/ University of the Islas Baleares/Spain
The Implications of Brain Imaging Studies for the Law
Dean Mobbs & Professor Chris Frith, Dept of Imaging Neuroscience, Institute of Neurology, UCL and Dr Hakwan Lau, Dept of Psychology, University of Oxford
How do Humans think about Right and Wrong? Neural Correlates of Normative Judgement
Dr Kristin Prehn, Dept of Psychology, Humboldt University, Berlin
Virtuous Foundations: The Law, Moral Reasoning and the Neural Mechanisms of Moral Cognition
Dr William Casebeer, Naval Postgraduate School, Monterey, California
4.15pm TEA BREAK
4.30pm SESSION IVA:
Why do good people steal Intellectual Property? Looking for answers in the Brain
Professor Oliver Goodenough, Professor of Law, Vermont Law School and the Gruter Institute
Accountability and Legal Responses to Medical Error
Professor Edward Dauer, Dean Emeritus, Sturm College of Law of the University of Denver, and Visiting Professor, California Western School of Law, San
Diego
Equality in Exchange Revisited: Why some unequal bargains are (somewhere) considered as unfair and others (elsewhere) not
Dr Bart Du Laing, Centre for Legal Theory, Katholieke Universiteit, Brussels
Just and Efficient Compensation for Governmental Takings for Property
Professor Jeffrey E Stake, Indiana University, School of Law
SESSION IVB:
Neuroscience and Dying Process: Psychoactive Substances and Reframing the ‘Good Death’
Robin Mackenzie, Director of Medical Law, School of Law, University of Kent and Regis de Silva, Harvard Medical School
Law, Ethics and Narratives of Belief
Professor Melanie Williams, Professor of Law, University of Wales, Swansea
Happiness and Law: Hedonics, Positive Psychology, Affective Neuroscience and Paternalism
Professor Peter H Huang, Professor of Law, Temple University, Member, School of Social Science, Institute for Advanced Study
Freedom of Memory
Professor Adam Kolber, University of San Diego, School of Law
DINNER at a local Chinese restaurant - additional fee payable
DAY TWO - 14th FEBRUARY 2006
9.00am SESSION V:
The Neurobiology and Behaviour of Belief
Professor Michael McGuire, UCLA, and Dr Lionel Tiger, Rutgers University
Detecting Lies (and other problems)
Professor Sean Spence, Professor of General Adult Psychiatry, University of Sheffield
Brain Imaging and Courtroom Evidence
Professor Neal Feigenson, Quinnipiac University School of Law
10.45am COFFEE BREAK
11.00am SESSION VI:
Institutional Substitutes for Sophistication in Legal Decision Making
Cheryl Boudreau, Dept of Political Science, University of California, San Diego
The Mind of a Child: Rethinking Competency, Culpability and Accountability in a Juvenile Court
Professor Katherine Hunt Federle, Professor of Law and Director of Justice for Children Project, Moritz College of Law, Ohio State University, Columbus, Ohio, and
Paul Skendelas, Assistant Public Defender, Franklin County, Ohio
Pictures, Words and the Law
Professor Christina Spiesel, Senior Research Scholar in Law, Yale Law School
Is Law Practical?
Dr Claire Valier, Lecturer in Law, Birkbeck, University of London
1.15pm LUNCH
2.00pm SESSION VII:
Behavioural Biology and Economics: Similarities and Differences in Intersections with Law
Professor Owen Jones, Professor of Law and Biological Sciences, Vanderbilt University
Should we be free not to be free to ruin ourselves? What ‘Law and Behavioural Economics’ and ‘Law and Neuro-economics’ add to the debate
Dr Florian Wagner-von Papp, Lecturer in Laws, UCL
Judicial Constructivism and Artificial Intelligence Applied to Law
Dr Enrique Caceres, Institute for Legal Research, Autonomous University of Mexico
3.45pm TEA BREAK
4.00pm SESSION VIII:
Learning, Assessment and the Gendered Brain
Catherine Iorns Magallanes, Senior Lecture in Laws, Victoria University of Wellington
Race, the Brain and the Law
Professor Terry Maroney, Law School, University of Southern California, and Dr. Elizabeth A. Phelps, New York University, Department of Psychology
Psychological Trauma and the law on Human Trafficking
Dr Natalia Walter, Consultant, Project REACH, The Trauma Center and Dr Jose Hidalgo, Psychology Department, University of Seville
Close at 6pm
PAY BAR
Convenors
Professors Michael Freeman (UCL) and Oliver Goodenough (Vermont Law School)
Enquiries
Lisa Penfold, Events Manager at the Law Faculty, UCL
Direct telephone: +44 (0)20 7679 1514
Direct fax: +44 (0)20 7679 1442
Email: lisa.penfold@ucl.ac.uk
Post
Lisa Penfold, Faculty of Laws, UCL
Bentham House, Endsleigh Gardens, London WC1H 0EG
Venue
The Colloquium will be held at the Faculty of Laws, University College London, in the heart of London’s Bloomsbury district. A map of the venue will be sent to you with your booking confirmation.
Registration fee
The registration fee for this colloquium is:
Standard: £140 (both days) £80 (one day only)
Academic: £100 (both days) £60 (one day only)
Students: £30 (both days)
Speakers: £80 (both days)
The registration fee includes all refreshments, lunch on each day, drinks reception and conference materials.
Special Discounts
UCL Alumni receive a 15% discount on the standard fee. To claim this reduction please state your year of graduation and/or your alumni number on the booking form.
Payment
Payment should be made in advance by cheque (pounds Sterling) made payable to UCL or by Credit Card. Please note that Credit Card transactions will incur a 2% additional charge. All registrations processed must be honoured in full, unless cancellation has been received under the terms stated below.
Cancellations
Cancellations must be received in writing by Wednesday 1 February 2006 and will be subject to an administrative charge of £25. It is regretted that no refunds will be made for invoices cancelled after that time and the full registration fee will be payable. Substitutions can be made at any time.
Accommodation
A list of accommodation within walking distance of UCL, from five star hotels to student residences, is available on the UCL website at:
http://www.procurement.ucl.ac.uk/public/hotels/listofhotels4.htm
We regret that we are unable to book your accommodation for you.
Please return this form to:
Lisa Penfold
Events Office, Faculty of Laws,
UCL, Bentham House, Endsleigh Gardens,
London WC1H 0EG
or fax it on: +44 (0)20 7679 1442

University of Toronton, Tax Policy: Janet Milne, University of Vermont, Tax Expenditures and Alternative Energy: Sound Tax Policy?
University of Alabama Law: Hanoch Dagan, Tel Aviv University.
University College, London, Colloquium in Legal and Social Philosophy: Professor John Broome, ‘Ought’
Oxford Public Law Discussion Group: Richard Ekins, "Parliamentary Sovereignty and the House of Lords in Jackson"
Oxford Criminology Seminar Series: Nicole Hahn Rafter, H.J. Eysenck and the Biological Turn in 20th Century Criminology
NYU Legal History: Peter Charles Hoffer, Research Professor, University of Georgia
“An Essential History of the United States Supreme Court”
UC Hastings: Discussion of Active Liberty by Stephen Breyer and A Matter of Interpretation by Antonin Scalia to be led by Professors Rory Little and Vik Amar and US District Court Judge Charles R. Breyer.

Friedman on the Politics of Judicial Review
Barry Friedman (New York University School of Law) has posted The Politics of Judicial Review (Texas Law Review, Vol. 84, p. 257, 2005) on SSRN. Here is the abstract:

This article marries the positive literature regarding judicial behavior to the normative literature regarding judicial review. Though scholars in the legal and political science academies both study judicial review, their approaches are dramatically different. Legal scholars tend to the normative, studying how judges should behave. Political scientists and political economists ask positive questions: how do judges behave, and why? The central thesis of the article is the normative literature about judicial review will remain impoverished until it takes account of the positive scholarship. Ought implies can; much of the positive literature suggests judges cannot or will not behave as normative scholars demand.
The article proceeds in four parts. After an Introduction, there is a brief historical discussion to explain why normative and positive scholarship parted company in the early 1940s. The heart of the article follows. This part is a comprehensive examination of the political influences on the constitutional judges. Beginning with the politics of the judge herself, the article then moves out in concentric circles to examine (a) the politics of judging on a collegial court; (b) the difficulties the Supreme Court faces in managing a large judicial hierarchy; (c) the influences of the other branches on Supreme Court decisionmaking; and (d) the relationship between public opinion and judicial review. In each section the goal is to show how confronting normative aspiration with political reality refocuses the questions that ought to be asked about judicial review. A subsidiary goal is to introduce normative scholars who are unaware to the vast positive literature about judicial behavior. The final part examines how the political influences described here ought to bear upon normative scholarship on judicial review.

Much of the public outcry against the Supreme Court's decision in Kelo v. New London can be understood in terms of the public's commitment to the conception of the home as a castle. This familiar metaphor is typically viewed as aligned with libertarian conceptions of property and of the right to exclude, a conception that rules out the exercise of eminent domain altogether. A different understanding of the castle metaphor is possible, however, one rooted in notions of the dignity of homeownership. While such a dignitary understanding of the home as the castle remains true to the intuitions underlying the metaphor, it yields a more flexible stance towards eminent domain.

This paper examines two fundamentally different perspectives when nation-states participate as creditors and debtors. The issue of sovereign debt -its character and effect - is really part of the much larger battle between two fundamentally opposed visions of the nature and character of the nation-states in general, and debtor states in particular, and of the global system that maintains the market for such transactions. The dominant vision, firmly grounded in private law, posits that growth can occur only in a tightly integrated global economy founded on trade liberalization, privatization, and macrostability. When the state fails to pay its debts, it ought to be treated like any other failed corporate enterprise - a stay on debt collection efforts, broad enforcement of absolute priority, creditor approval of the proposed reorganization plan, and well protected new interim financing pending restructuring. Opposing the dominant vision is an anti-corporatist approach grounded in public law and the subordination of economics and markets to political control in the furtherance of deliberate state public policy and planning. States fail because it is in the interest of dominant states to use sovereign debt as a means of perpetuating subordination and a hierarchy of power among states. When a state fails to pay its debts, the focus ought to be on the creditor, and the fairness of the debt in terms of the larger public policy concerns - development, and the maximization of living standards for all individuals through state planning. The paper first explores the normative foundations of each vision and its consequences for dealing with the borrowings of nation-states. For this purpose the paper concentrates on two actors who most starkly highlight the opposing views. For the dominant vision is focus is on Anne Krueger, the First Deputy Managing Director of the International Monetary Fund, and specifically on her proposal to create a bankruptcy model for sovereign state debt restructuring. For the opposing vision the focus is on Fidel Castro Ruz, the President of the Republic of Cuba and specifically on his elaboration of a critique of the dominant vision of global economic development championed by the IMF. These actors nicely distill the positions subject to analysis in this paper. The implications of each for the shape and character of international regulation, and of the state as an actor in the context of the emerging global system of economic and political regulation, are then explored. In particular, the paper contextualizes the Castro vision within the developing positions of a number of public sector institutions, from Latin American opposition ot the Free Trade Area of the Americas, to its use by the United Nations Human Rights establishment in Geneva to regulate transnational corporations, to its use by non-state actors in the West, particularly the Roman Catholic Church, to challenge, from within the West, the market driven system elaborated through the IMF and well illustrated by Krueger’s proposal for a corporate bankruptcy style state discipline overseen by international regulatory agencies.

CALL FOR PAPERS
2006 JOINT SESSION OF THE MIND ASSOCIATION AND THE ARISTOTELIAN SOCIETY
UNIVERSITY OF SOUTHAMPTON, 7TH –9TH JULY
OPEN SESSIONS
A number of parallel sessions on Saturday and Sunday afternoons will be available for the presentation of papers not previously published. There will be a considerable number of these sessions available, allowing room for many submissions to be included. The intention is to accommodate all philosophical material suitable for presentation to a professional audience, so far as time and space in the programme allow, and not to operate a selective policy.
Each presentation should last no more than 20 minutes, so that a further 10-15 minutes may be allowed for discussion. Presented papers should aim to introduce material involving recent research. There are no restrictions on the areas of philosophy which papers may address. Philosophers whose papers are included in this part of the programme must be or become subscribing members of one of the organising societies.
Those wishing to make a presentation should submit by e-mail attachment a copy of their paper (no more than 2000 words), together with a 250-word abstract, to joint-session@soton.ac.uk by 1st March 2006. Decisions on whether papers have been accepted will be made by the end of April 2006.
Papers accepted for the Open Sessions will not be published in the Supplementary Volume of the Aristotelian Society (unlike papers invited for the plenary programme of the conference); and expenses will not be paid.
POSTGRADUATE SESSIONS
Two parallel sessions on the Saturday afternoon will be devoted to short presentations by graduate students (or those who have recently obtained a postgraduate degree). Each student should speak for 20 minutes, allowing 10 minutes for discussion.
Students wishing to participate should send their paper, preferably by attachment in Word 98 or higher, otherwise in two hard copies, by 1st February 2006 to: Dr. Mark Eli Kalderon, Department of Philosophy, University College London, Gower Street, London WC1E 6BT. Email: m.kalderon@ucl.ac.uk.
The paper should be about 2000 words but no more than 2500 words, including notes and bibliography, and should begin with a brief abstract. It should be typewritten in 12-point text, single-spaced throughout (i.e. including references and quotations), on one side of white A4 paper. All pages should be numbered and have margins of 1 inch or more. Papers containing symbols liable to distortion in transmission should be submitted as hard copies; otherwise soft copy is welcome.
Please ensure that there are no self-identifying references in the text. Submissions should be accompanied by a separate page containing the title of the paper, the name of the author, institution and status, and email and postal addresses.
Authors are advised to consult supervisors about what may be suitable for presentation to a largely professional audience. Given the tight word-limit, they are advised to give as much space as they can to the statement of their own ideas.
The papers will be sent to referees, and a maximum of eight will be selected for presentation at the Joint Session. The programme will be settled in May 2006.
The selected authors will have their conference fee and accommodation expenses (but not their travel costs) paid by the Mind Association and the Aristotelian Society.
Some papers may subsequently be considered for publication in the Proceedings of the Aristotelian Society.
Nobody should submit a paper for both the Postgraduate and the Open Sessions, and only one paper may be submitted per individual. However, graduate students whose submission for the Postgraduate Sessions is unsuccessful may subsequently be advised that their paper has been accepted for the Open Sessions. Conference costs, however, will not be paid by the organisers.
INVITED SPEAKERS
Inaugural Address – Timothy Williamson
Symposia:
Andy Clark and Naomi Eilan
Sally Haslanger and Jennifer Saul
John Hawthorne and Scott Sturgeon
Lloyd Humberstone
Tom Hurka and John Tasioulas
Ken Gemes and Christopher Janaway
For information about the Aristotelian Society & the Joint Session see http://www.aristoteliansociety.org.uk

Presidents have issued signing statements instructing the executive branch that a provision in a law is unconstitutional and should not be enforced. In other words, the President's signs the law but notes that a part of it is unconstitutional.
This practice, I believe, is unconstitutional and illegitimate. In a law review article written more than a decade ago, I argued that if the President believes that a provision of a bill is unconstitutional and that he has the power to not enforce it if it is passed, then he is required to veto it. Given that he believes that the Constitution forbids him from enforcing an unconstitutional law, he should also believe that he is required not to sign that unconstitutional law. See "The President's Veto and the Constitution," 87 Northwestern Law Review 735 (1993).
Thus, President Bush should have vetoed the law had he believed it unconstitutionally constrained his commander in chief or executive power.

In Lawrence v. Texas, the Supreme Court situates its opinion within the history of laws banning sodomy. Lawrence, however, is also part of another historical narrative: the history of attempts by federal lawmakers and judges to define the relationships among the genus of illicit sex, the genus of licit sex, and marriage. Viewed from this perspective, Lawrence marks the latest intervention in a legal conversation that began when Congress enacted the 1907 Immigration Act and the 1910 Mann Act, each of which prohibited the movement of women across borders—the former, international, the latter, interstate—for “immoral purposes.” In the early twentieth century, through these provisions, lawmakers and judges constructed an isomorphic relationship between marriage/nonmarriage and licit sex/illicit sex. The “marriage cure” transported sex across the illicit/licit divide. But courts and legislators came to view these curative powers as a threat to marriage’s place in the sociolegal order because individuals used marriage as a tool to evade legal penalties. Thus, they checked the powers of the marriage cure and, in so doing, uncoupled both parts of their original isomorphism. Lawrence represents the culmination of this process: the movement of a sexual relationship across the illicit/licit divide at least in part because it made no claim to marriage. This move reflects the persistent status of marriage as simultaneously powerful in its ability to confer legal privileges and to shield people from the dangers of sexual illicitness, and powerless to protect itself from the taint of those same illicit practices.

Contract theory does not address the question of how parties design contracts under the existing adversarial system, which relies on the parties to establish relevant facts indirectly by the use of evidentiary proxies. In this Article, we advance a theory of contract design in a world of costly litigation. We examine the efficiency of investment at the front end and back end of the contracting process, where we focus on litigation as the back-end stage.

By the way, giant kudos to the YLJ for making full-text PDF's available upon publication!

Criminal Law and Philosophy
An International Journal for Philosophy of Crime, Criminal Law and Punishment
ISSN: 1871-9791 (print version)
Rationale

The philosophy of crime and criminal law has been undergoing a renaissance. Increasing numbers of lawyers and philosophers are researching, writing and teaching in the area. Lawyers who are exploring theoretical issues related to criminal liability and punishment find that they must turn to philosophy. Philosophers recognise the importance of the criminal law as a focus for both analytical and normative inquiry. The practical importance of the subject is also obvious, especially at a time when western governments are having to reconsider their rationales for criminalization and sentencing in the light of substantial changes in criminal justice systems and their social contexts.
Currently, there is no journal that is solely devoted to the philosophy of crime and criminal law. Criminal Law and Philosophy aims to fill this gap by providing a specific platform for the high quality work that is being done in this area.

High quality content; specific and inclusive in scope

Criminal Law and Philosophy will publish high quality articles that take a philosophical perspective on any issues in the broad field of crime and punishment. The main areas and topics include: crime and criminalization; the content, principles and structure of substantive criminal law; criminal justice and the criminal process; punishment and sentencing.
The journal will be inclusive in its scope: it will publish articles with a historical focus on earlier philosophical discussions of crime and punishment, as well as articles with a more contemporary focus. It will seek contributions from a range of philosophical schools and approaches, in particular both from analytically oriented philosophers and from those who draw more on contemporary continental philosophy.

Readership

Criminal Law and Philosophy will become essential reading for academics in philosophy, in law and in criminology who take a philosophically informed critical, analytical or normative approach to the criminal law and criminal justice. It will also be an important resource for students in those subjects, and for practitioners with an interest in philosophical approaches to their practice. Through this journal, readers will be able to access the latest thinking by the best scholars in the philosophy of crime and punishment.

CONFERENCE ON LAW AND MORALITY
Institute of Bill of Rights Law
William & Mary School of Law
March 16-18, 2006
Thursday, March 16, 2006: 4:00 PM – 6:00 PM
Friday, March 17, 2006: 9:00 AM – 4:00 PM
Saturday, March 18, 2006: 9:00 AM – 4:00 PM
Is Law measured by Morality? Or is Morality determined by Law? Is the relationship between Law and Morality static or dynamic? Fundamental questions such as these will be the focus of a two and one half day Conference on Law and Morality. Professor Michael S. Moore, of the University of Illinois College of Law, will open the Conference with introductory remarks on Thursday at 4:00 pm. On Friday and Saturday, a series of panels will consider Law and Morality in Contract, Tort, Property, Criminal, and Constitutional Law.
PARTICIPANTS
Peter A. Alces, William & Mary School of Law
Lawrence Alan Alexander, University of San Diego School of Law
Peter Benson, University of Toronto
Jules L. Coleman,Yale Law School
Clare O. Finkelstein, University of Pennsylvania Law School
James Russell Gordley, University of California School of Law - Berkeley
R. Kent Greenawalt, Columbia University School of Law
Kyron J. Huigens, Yeshiva University - Benjamin N. Cardozo School of Law
Heidi Hurd, University of Illinois College of Law
Leo Katz, University of Pennsylvania Law School
Jody S. Kraus, University of Virginia School of Law
Thomas W. Merrill, Columbia University School of Law
Arthur Ripstein, University of Toronto
Paul H. Robinson, University of Pennsylvania Law School
Carol Marguerite Rose, Yale Law School
Fred Shauer, Kennedy School of Government, Harvard University
Emily L. Sherwin, Cornell Law School
Henry E. Smith, Yale Law School
Benjamin C. Zipursky, Fordham University School of Law
Click here for more information.
This conference is free and open to the public. Registration is required.
For more information about the Institute of Bill of Rights Law see: IBRL.org

London Legal and Political Philosophy Seminar
Convened by: Professor Ross Harrison (University College) and Dr. Claire Valier (Birkbeck College)
We are pleased to announce a new forum for legal and political philosophy. All academic staff and doctoral students are welcome to attend. The sessions are at 6-7.30pm on Tuesday evenings at the Faculty of Laws, University College London. We aim to make papers available to participants in advance of the sessions.
The seminars will take place in Room GS202 in Bentham House (at the corner of Endsleigh Gardens and Endsleigh Street). GS202 is in the Gideon Schreier wing, at the back of the building. Go up one floor, follow notices into the wing, then up another floor on its own staircase. (Note that you can't get there directly from the main second floor.)
Schedule

Roberts on Scottish Common Sense Philosophy and Legal Positivism
Thomas Roberts (European University Institute) has posted Legal Positivism and Scottish Common Sense Philosophy (The Canadian Journal of Law and Jurisprudence, Vol. XVIII, No. 2, July 2005) on SSRN. Here is the abstract:

This paper identifies a volitional theory of meaning common to speech act theory and legal positivism, represented by Hart and Kelsen. This model is compared and contrasted with the model of social operations developed by Reid, a Common Sense Enlightenment philosopher. Whereas the former subscribes to the view that meaning is generated by acts of will, the latter finds meaning to consist of the dual elements of sign and 'directedness'.
The ability of positivist theories to provide a structural account of the difference between legal rules and other rules is inextricably linked to this commitment to the volitional theory of meaning. The commitment to the volitional view however leads to problems in requiring that some kind of authority be presupposed in for plain rules to attain legal force. Such authority can only be established with recourse to further rules (thus falling into a malign infinite regress) or must be accepted as a matter of faith. Reid's criterion of direction however vitiates the need for an authority, instead accounting for social communication in general, and rules in particular, in terms of sociological factors. Although no comprehensive critique of the volitional theory is proposed, Reid's model is preferable on the grounds of explanatory richness.
The core claims of the paper are that: (a) legal positivism necessarily subscribes to the volitional theory of meaning; (b) rejection of the volitional theory necessarily entails rejection of the positivist view that legal and non-legal rules can be differentiated on structural grounds (c) another counter-model exists which avoids some of the pitfalls of the volitional theory; (d) if the volitional theory is rejected then the existence of rules can only be accounted for in a 'strong' sociological sense and legal theory must accordingly accept the dominant role of sociology in conceptualising the nature of rules.

Sixty-one years ago, Eugene V. Rostow published the first major academic article on the Japanese American internment of World War II. The article's title left little doubt about Rostow's view of the Supreme Court's decisions in Hirabayashi v. United States (1943) and Korematsu v. United States (1944): The Japanese American Cases - A Disaster. Rostow's claim was that these two cases were a substantive disaster of constitutional doctrine - a fundamentally mistaken endorsement of a repressive military program.
Rostow's conceptualization of the disaster of the Japanese American cases continues to define - and, in a sense, to confine - our view of the legal history of this wartime period. There are, in fact, many more wartime Japanese American cases to remember than Korematsu and Hirabayashi. These two cases were really just one small part of a much broader program of litigation in which the government sought both to capitalize on and to reinforce the image of Japanese Americans as disloyal subversives.
This Article broadens Rostow's assessment of the Japanese American cases as a disaster by recasting both of those terms. It widens the focus of the term Japanese American cases to include stories of the many wartime Japanese American cases that the literature has slighted or forgotten. This broader view reveals that the Japanese American cases of World War II were a disaster of a different sort: a litigative debacle, in which an astonishing number of cases ended in acquittals, dismissals, stern judicial rebukes, and other repudiations of the government's legal and factual positions. The Article concludes that the overall litigative project was a misadventure in using the law - especially the criminal law - to tar a racial group with the badges of disloyalty during wartime.

No one knows the Japanese-internment cases better than Muller. Highly recommended.

NUSSBAUM'S HIDING FROM HUMANITY: AUTHOR MEETS CRITICS
Research Beehive 2.29, Old Library Building
University of Newcastle, UK
Monday, 3rd April 2006
Conference website: http://www.ncl.ac.uk/niassh/Nussbaum/
In 2004, Martha Nussbaum publisher her important new book _Hiding from Humanity: Shame, Disgust, and the Law_ (Princeton, NJ: Princeton University Press). This book explores the important and often neglected relationship between emotions and the law. The conference will bring together four philosophers-David Archard (Lancaster), Thom Brooks (Newcastle), Willie Charlton (Retired), and John Haldane (St Andrews)-with replies to each by Martha Nussbaum.
Martha Nussbaum is Ernst Freund Distinguished Service Professor of Law and Ethics at the University of Chicago, appointed in the Philosophy Department, Law School and Divinity School. She is an Associate in the Classics Department and the Political Science Department, an Affiliate of the Committee on Southern Asian Studies, and a Board Member of the Human Rights Program. She is the founder and Coordinator of the new Center for Comparative Constitutionalism. Her Hiding From Humanity won the Association of American University Publishers Professional and Scholarly Book Award for Law in 2004.
PROGRAMME:

REGISTRATION:
Students/unwaged: £10
Waged: £15
Registration includes two teas/coffees and buffet lunch.
The conference is open to all. Funding for postgraduate students is available on a first come, first serve basis. Information on registration and travel is available from our conference website: http://www.ncl.ac.uk/niassh/Nussbaum/ For additional information, please contact Dr Thom Brooks (email: t.brooks@newcastle.ac.uk).
The conference is supported generously by the Newcastle Institute for the Arts, Social Sciences, and Humanities (NIASSH); the Newcastle Legal Theory Network; the Newcastle Political Philosophy Group; Princeton University Press; the School of Geography, Politics, & Sociology; and the Society for Applied Philosophy.

University of Toronton, Tax Policy: Janet Milne, University of Vermont, Tax Expenditures and Alternative Energy: Sound Tax Policy?
University of Alabama Law: Hanoch Dagan, Tel Aviv University.
University College, London, Colloquium in Legal and Social Philosophy: Professor John Broome, ‘Ought’
Oxford Public Law Discussion Group: Richard Ekins, "Parliamentary Sovereignty and the House of Lords in Jackson"
Oxford Criminology Seminar Series: Nicole Hahn Rafter, H.J. Eysenck and the Biological Turn in 20th Century Criminology
NYU Legal History: Peter Charles Hoffer, Research Professor, University of Georgia
“An Essential History of the United States Supreme Court”

Thursday, February 9

Oxford Juirsprudence Discussion Group: Prince Saprai, Restitution Without Corrective Justice
University of Michigan, Law & Economics: Peter DiCola, Michigan, An Economic Model of Sampling, Cover Versions, and Musical Collage
University of Texas Law: Tom Merrill (Columbia) "The Accardi Principle"
Villanova Law: Lawrence Joseph, St. John’s University School of Law.
University of North Dakota, Indian Law Center: Erma J. Vizenor, "Tribal Sovereignty, the Federal Trust Responsibility, and Constitutional Reform"
University College, London, Current Legal Problems Lecture: Dr Nigel Simmonds (Corpus Christi College, Cambridge, ‘Justice and Legality’
UCLA Legal Theory Workshop: Daryl Levinson, Professor of Law, Harvard Law School
Oxford Public International Law Discussion Group: Dr. Rhiannon Talbot, What can Iraq, 7/7, Northern Ireland and the Terrorism Bill Teach Us:Building National Security and Human Rights as a Counter-Terrorism Strategy
NYU Tax Policy & Public Finance: Stacy Dickert-Conlin, Michigan State University Economics Department, "Love at What Price? Estimating the Value of Marriage."
UC Berkeley, Kadish Center: Kent Greenawalt
Florida State Law: Bethany Berger, Wayne State University Law School (Hirsch)

Friday, February 10

Georgetown Law & Economics: Chris Sanchirico, Univ. of Pennsylvania Law School
Wharton Business & Public Policy Department, "Detection Avoidance"
UCLA Law: Allison Marston Danner, Associate Professor of Law & UCLA Visiting Scholar
Vanderbilt University Law School, "When Courts Make Law: How the
International Criminal Tribunals Recast the Laws of War"
Notre Dame Law: Professor William H. Page, Marshall M. Criser Eminent Scholar
University of Florida Fredic G. Levin College of Law.
Boston College Law: Shimon Shetreet, Professor of Law, The Hebrew University of Jerusalem, Faculty of Law
USC Law: FISCAL CHALLENGES: AN INTERDISCIPLINARY APPROACH TO BUDGET POLICY

10:00am-12:00pm

Panel 1: Theories of Deficits and the Regulation of Deficits
Michael Boskin
Jürgen von Hagen
"Fiscal Rules and Fiscal Performance in the EU and Japan"
Please click here for the Tables for the above paper
Jonathan Baron and Ed McCaffery
"Starving the Beast: The Psychology of Budget Deficits"
Commentator: John Matsusaka

Panel 3: State Law Issues in Budgeting
Barry R. Weingast and John J. Wallis
"Dysfunctional or Optimal Institutions?: State Debt Limitations, the Structure of State and Local Governments, and the Finance of American Infrastructure"
Juliet Musso, Elizabeth Graddy, and Jennifer Grizard
"State Budgetary Processes and Reforms-The California Story"
Jaime Calleja Alderete, Tracy Gordon and Jon Sonstelie
"Much Ado About Nothing?: Tax and Expenditure Limits and Government Responsiveness"
Commentator: David Super

Introduction
One of the key ideas in contemporary economic theory in general and law and economics in particular is the social welfare function. Law students without a background in economics might be put off by the fact that social welfare functions are expressed in mathematical notation, but there is no reason to be intimidated. The basic ideas are easily grasped and the mathematical notation can be mastered in just a few minutes. This post provided an introduction to the idea of the social welfare function for law students, especially first year law students, with an interest in legal theory. Here we go!Background

Normative Economics
The idea of a social welfare function is part of normative economics. There are several plausible formulations of normative economics, but almost all of normative economics begins with the fundamental idea of utility as a conception or measure of the good. Economists may disagree about the nature of utility, the relationship of utility to social welfare, and the role of welfare in public policy, but most (if not all) economists would assent to the abstract proposition that ceteris paribus more utility is a good thing. But this apparent agreement is at a very abstract and ambiguous level. There are many different ideas about what "utility" is.Cardinal and Ordinal Interpretations of Utility
One key divide is between cardinal and ordinal interpretations of utility. An ordinal utility function for an individual consists of a rank ordering of possible states of affairs for that individual. An ordinal function tells us that individual i prefers possible world X to possible world Y, but it doesn't tell us whether X is much better than Y or only a little better.
A cardinal utility function yields a real-number value for each possible state of affairs. If we assume that utility functions yield values expressed in units of utility or utiles, then individual's utility function might score possible world P at 80 utiles and possible world Q at 120 utiles. We might represent the utility function U of individual i for P and Q as follows:

Ui(P) = 80
Ui(Q) = 120

The distinction between cardinal and ordinal utilities is potentially important for utilitarianism, at least on certain interpretations. As a theory of evaluation, utilitarianism is the view that an action is the best action if and only if the action maximizes utility when compared with all possible alternative actions. For technical reasons, utilitarianism requires both cardinality and full interpersonal comparability. This point about utilitarianism is closely related to the history of welfare economics, the explicitly normative branch of economic theory.Measurement Problems
Both cardinality and interpersonal comparability pose measurement problems for economists. Even in the case of a single individual, it is difficult to reliability measure cardinal utilities. Measurements that support interpersonal comparisons are even more difficult to justify, and cardinal interpersonal comparisons seem to require the analyst (the person making the comparison) to make a variety of controversial value judgments. Market prices won't do as a proxy for utility, for a variety of reasons including wealth effects. The challenge for welfare economics was to develop a methodology that yields robust evaluations but does not require the cardinal interpersonally comparable utilities.Pareto
This is the point at which Pareto arrives on the scene. Suppose that all the information we have about individual utilities is ordinal and non-interpersonally comparable. In other words, each individual can rank order states of affairs, but we (the analysts) cannot compare the rank orderings across persons. The weak Pareto principle suggests that possible world (state of affairs) P is socially preferable to possible world (state of affairs) Q, if everyone's ordinal ranking of P is higher than their ranking of Q. Weak Pareto doesn't get us very far, because such unanimity of preferences among all persons is rare. The strong Pareto principle suggests that possible world (state of affairs) P is socially preferable to possible world (state of affairs) Q, if at least one person ranks P higher than Q and no one ranks Q higher than P. Unlike weak Pareto, strong Pareto does permit some relatively robust conclusions.The New Welfare Economics
The so-called new welfare economics was based on the insight that market transactions without externalities satisfy strong Pareto. If the only difference between state P and state Q is that in P, individuals i1 and i2 engage in an exchange (money for widgets, chickens for shoes) where both prefer the result of the exchange, then the exchange is Pareto efficient. A state of affairs where no further Pareto efficient moves (or trades) are possible is called Pareto optimal. The assumption about externalities is, of course, crucial. If there are negative externalities of any sort, then the trade is not Pareto efficient.Weak Pareto and the Arrow Impossibility Theorem
Weak Pareto plus ordinal utility information allows some social states (or possible worlds) to be ranked on the basis of everyone's preferences. A method for transforming individual utility information into such a social ranking is called a social utility function. Kenneth Arrow's famous impossibility theorem demonstrates that it is impossible to construct a social utility function that can transform individual ordinal rankings into a social ranking in cases not covered by weak Pareto, if certain plausible assumptions are made. Arrow's theorem has spurred two lines of development in welfare economics. One line of development relaxes various assumptions that Arrow made; for example, we might relax Arrow's assumption that the social ranking must be transitive (if X is preferred to Y and Y is preferred to Z, then X must be preferred to Z). The other line of development considers the possibility of allowing information other than individual, noncomparable ordinal utilities. It is this second line of development that is relevant to the use of social welfare functions in contemporary law and economics.

Social Welfare Functions
Suppose that we allow full interpersonal comparability and cardinal utility information. This is sufficient to support what are called Bergson-Samuelson utility functions, which have the form:

W(x) = F (U1(x), U2(x), . . . UN(x))

Where

W(x) represents a real number social utility value for some state of affairs (or possible world) X,
F is some increasing function that yields a real number,
U1(x) is a cardinal, interpersonally comparable utility value yielded by some procedure for individual 1 for state of affairs X, and
N is the total number of individuals.

Bergson-Samuelson social welfare functions are named after Paul Samuelson and Avram Bergson.What Are the Plausible Social Welfare Functions?
There are a variety of different possible functions that can be substituted for F. Here are some of the most important possibilities:

Classical-utilitarian SWF--We could substitute summation for F, and simply add the individual utility values; this is sometimes called a Benthamite or classical-utilitarian social welfare function famously associated with Jeremy Bentham. The classical utility social welfare function can be represented as follows:

W(x)={U1(x) + U2(x) + U(3(x) . . . Un(x)}

Average-utilitarian SWF--The classical SWF adds the utilities. This raises some very interesting issues when the different states of the world (x or y) have different population sizes. When deciding whether to add additional individuals, the classical-utilitarian SWF says more is better until we reach the point where adding more actually reduces the overall level of utility. One way to avoid this implication is use the average level of utility instead of the sum, as in the following formula:

W(s){[U1(x) + U2(x) + U(3(x) . . . Un(x)]/n}

In other words, we divide the sum of utilities by the number of individuals!Bernoulli-Nash SWF--In the alternative, we could substitute the product function (¡Ç) and multiply individual utilities. This is sometimes called a Bernoulli-Nash social welfare function, which can be represented as follows:

W(x)={U1(x) * U2(x) * U(3(x) . . . Un(x)}

Rather than adding individual utilities, we multiply them! And yes, the "Nash" in Bernoulli-Nash is John Nash of "A Beautiful Mind" fame.

What About the Problem of Interpersonal Comparison?Social welfare functions are much discussed in legal theory these days. One of the reasons for the contemporary debate over social welfare functions is that this approach has been championed by Louis Kaplow and Steven Shavell (both of the Harvard Law School). Their book, Welfare versus Fairness, has put the welfarist approach to normative economics "front and center."
One of the interesting theoretical questons about SWFs concerns the problem of interpersonal comparison. How do we get the values to plug into U1(x), U2(x), and so forth. That is, how do we compare up with a way of putting my utility and your utility on the same scale. As I understand the state of play, this is not a topic on which economists agree. Some economists believe that there is no objective way of producing interpersonally comparable cardinal utility values. But some economists believe that a third-party (the legal analyst or the economist) can do the job of assigning values to individual utilities.Conclusion
We've barely begun to scratch the surface of the many interesting theoretical issues that attend the use of social welfare functions in legal theory. Some of those issues were explored in a prior Legal Theory Lexicon entry on Balancing Tests. Even if you have absolutely no background in economics, there is no reason to shy away from the debates about social welfare functions. The notation, although at first intimidating, is actually very simple. The foundational ideas, although sometimes articulated in the jargon of economic theory, really go to fundamental questions in moral theory. I hope this post has given you the tools to begin to discuss these ideas!

Randy offers a new foil to distinguish his theory of original meaning originalism. He calls it the "underlying principles" approach, which in his words, "discern[s] from the text the deeper underlying principles that underlie is particular injunctions."

And:

Randy does not identify any particular adherents of this underlying principles approach, although he claims that it is very common. He might well have picked me as his foil, for as I have argued here, the combination of the original meaning of the constitutional text plus underlying principles is a pretty fair first approximation of my normative approach to constitutional interpretation.

One of the most important passages in Balkin's post is the following:

Randy has no objection to the use of underlying principles to the extent that "we often do need to consider the principles underlying the text to make sense of it." His real concern is that the principles will displace the text. But for this displacement to occur we have to know what the text really means independent from the principles that it promotes. Sometimes that is easy to do when the text is relatively clear cut. The Framers said that the President must be 35, and perhaps the underlying principle is that he or she be relatively mature. However, the specific age limit controls, and it may not be displaced by the more general principle it enacts.
But when we move to the more abstract and general features of the constitutional text, like the Equal Protection Clause or the guarantee of freedom of speech-- to say nothing of the Privileges or Immunities Clause, or the Ninth Amendment-- it is much harder to see when the underlying principles are displacing the text. Indeed, we need such principles in order to understand how to apply the text to concrete circumstances.

This is one of the central claims of contemporary constitutional theory--that the general and abstract clauses of the constitution warrant the "underlying principles" approach to constitutional interpretation. Notice, however, that Balkin's move is just a bit slippery. Let's take it apart, step by step. Here goes:

--[Barnett's] real concern is that the principles will displace the text. This seems exactly right
--But for this displacement to occur we have to know what the text really means independent from the principles that it promotes. This is the key move, and I think it is incorrect. Displacement can occur, whether or not we know what the text means independently from the prnciples that it promots. Let me give and example, and then explain.

Example: Take the equal protection clause. Suppose the underlying principle is some conception of equality or of equal citizenship. One can easily imagine the principle displacing the text. The move goes like this: (1) the principle that underlies the equal protection clause is a theory of equality T; (2) T require result R under circumstances C; (3) thereofre, the equal protection clause requires R under C.
Explanation: In this example, the equal protection clause becomes identical with the principle that underlies it. This is exactly the kind of move that Barnett was worried about. We have conceptual ascent from constitutional text to underlying principles follow by conceptual descent from the principles to application--without going back to the text itself.

Recall that Balkin's claim was "for this displacement to occur we have to know what the text really means independent from the principles that it promotes." In the example, given above, the prnciple does displace the text. So now the question becomes, "can we still refer to the principle in the process of interpreting the text without substituting the principle for the text?" And the answer to this question is, of course, "yes." The key is to substitute a new step 2 for thatgiven in the example, i.e.:

1) the principle that underlies the equal protection clause is a theory of equality T;
2') given that the principle underlying the equal protection clause is T, ambiguity A (or vagueness V) should be resolve by interpretion I (as opposed to alternative interpretations I' or I'').
3') given interpretation I of the equal protection clause, application of the clause to circumstances C requires result R'.

The new version of step 2, step 2' (or "two prime") involves reference to underlying principles, but it does not involve displacement of the text by the underlying principle. This is the crucial step in my dissection of Balkin's argument. Back to Balkin.
--Sometimes that is easy to do when the text is relatively clear cut. The Framers said that the President must be 35, and perhaps the underlying principle is that he or she be relatively mature. However, the specific age limit controls, and it may not be displaced by the more general principle it enacts.Balkin is right. In this case, we don't need to know the general principle in order to interpret the text. No quibbles here.
--But when we move to the more abstract and general features of the constitutional text, like the Equal Protection Clause or the guarantee of freedom of speech-- to say nothing of the Privileges or Immunities Clause, or the Ninth Amendment-- it is much harder to see when the underlying principles are displacing the text. Notice that Balkin says "hard to see". This is an epistemological claim--about how easy or hard it is to know when displacement is occuring. It is not a claim that displacement is not occuring. It is not a claim that displacement is different from utilization of principles in the process of interpretation.
--Indeed, we need such principles in order to understand how to apply the text to concrete circumstances. Notice the crucial ambiguity here. Balkin's claim is ambiguous as between the two different roles that principles can play, as illustrated by the example above. We may need principles to resolve ambiguities or vagueness. And the resolution of ambiguities or vagueness may be required to apply the text to concrete circumstances. But that is quite a different thing than using the principles themselves as the basis for deciding what the text requires in concrete circumstances.In other words, Balkin hasn't actually made out his claim that "for this displacement to occur we have to know what the text really means independent from the principles that it promotes". My example shows that there can be displacement, even if the meaning of the general and abstract provisions of the constitution can only discerned with the aid of underlying principles. That is because there is a difference between the use of underlying principles to resolve ambiguity or vagueness and the use of underlying principles as a substitute for the constitutional text.

I've only touched on part of Balkin's argument. There's much more to chew on. Read Balkin's wonderful post and Barnett's excellent essay!

How should judges interpret statutory and constitutional law? Gutmann (politics, Princeton; Democracy and Disagreement, LJ 12/15/96) has edited an admirable work focusing on the relationship of the federal courts in interpreting the law. Supreme Court Justice Scalia's essay elaborates on his philosophy of textualism, an approach that eschews legislative intention in favor of focusing on the original meaning of the text to be interpreted. He applies this principle to constitutional law, arguing that we should concentrate on the Constitution's original meaning. Following this essay are brief comments by noted legal scholars Ronald Dworkin, Mary Ann Glendon, Lawrence Tribe, and Gordon Wood. It's deceptively easy to simplify Justice Scalia's ideas to a single sentence, as Gutmann does in her preface: "laws mean what they actually say, not what legislators intended them to say but did not write into the law's text." But the debates over the manner of interpreting legal texts have been held since the very beginning of our constitutional government. This collection certainly isn't the final word, but it offers an excellent starting place. For academic collections.

And from John McGinnis in the Wall Street Journal:

"[We] are lucky to have, in book form, an essay on legal interpretation by Justice Scalia....[He] projects a sanguine humor through a robust prose enlivened by sly sallies against what he sees as the gaps in logic of the opposing camp. He is anything but the angry justice of popular myth."

This is an essential book for any library on contemporary constitutional theory!
Here are some other Scalia-oriented monographs:

In this essay, based on the 2006 William Howard Traft lecture, I critically evaluate Justice Antonin Scalia's famous and influencial 1988 Taft Lecture, entitled Originalism: The Lesser Evil. In his lecture, Justice Scalia began the now-widely-accepted shift from basing constitutional interpretation on the intent of the framers to relying instead on the original public meaning of the text. At the same time, I explain how Justice Scalia allows himself three ways to escape originalist results that he finds to be objectionable: (1) when the text is insufficiently rule-like, (2) when precedent has deviated from original meaning and (3) (when the first two justifications are unavailing) just ignore originalism to avoid sufficiently objectionable results. While Justice Scalia describes his approach as faint-hearted originalism, I contend that he is not really an originalist at all as evidenced by this lecture and also by his stances as a justice in several important cases. This leaves Justice Thomas as the only justice who seems at all bound by originalist conclusions with which he may disagree. I then summarize why the courts ought to adhere to original public meaning originalism, why this form of originalism is preferable to the principal alternative - which I call the underlying principles approach - and why originalism, properly understood, does not lead to the types of grossly objectionable results that leads Justice Scalia to be faint of heart.

Philosophy on the Web
I wanted to pass on this information from Jonathan Bennett:

Update on the website at www.earlymoderntexts.com
The website has acquired four texts since I last reported (in July 2005):
1. Mill’s Utilitarianism
2. Reid’s Inquiry into the Human Mind
3. Leibniz’s New Essays on Human Understanding
3. Bacon’s New Organon.
The weekly number of visits to the site has been increasing pretty steadily. It is now just under 3,000 per week.
The next two additions to the site will probably be:
(at least some of) Reid’s Essays on the Intellectual Powers of Man.
The Objections and Replies relating to Descartes’s Meditations.

This website already contains a number of very important and useful online texts, including Hobbes's Leviathan and Kant's Groundwork. Check it out!

The University of Texas at Austin
Dean, School of Law
The University of Texas at Austin seeks a highly qualified individual as Dean of the School of Law. The Dean is responsible for providing academic and scholarly leadership and administration to the School; furthering the continued development of nationally recognized programs of instruction, research, and public service; enhancing a collegial atmosphere and learning environment through open and effective interaction with faculty, students, staff, the campus's other units, and external constituencies. As the chief executive officer of the School, the Dean, like the University's 16 other deans, reports to the University's chief academic officer: the Executive Vice President and Provost.
The Dean must be a dynamic leader who can effectively manage a nationally recognized School of Law. In Fall 2005, the School enrolled 1427 students. The tenured and tenure-track faculty numbers 62; the School's operating budget for 2005-06 is $37 million, and its endowment is $158 million. Please consult the School's website at http://www.utexas.edu/law/ for further information.
Candidates for this position should possess the following qualifications:

An earned law degree and distinction sufficient to merit the rank of full professor (with tenure) in the School of Law.
National recognition for accomplishments in education, research, and professional activities.
Successful administrative experience at a significant level with leadership, managerial, and communicative skills.
An ability and desire to lead the School to even greater national distinction and recognition.
Experience in securing financial support for research and educational purposes and in raising funds in the private sector.

Applications and nominations will be accepted until March 3, 2006; after this date the Committee has the discretion to consider additional applicants. A letter discussing relevant experience and accomplishments, curriculum vitae, and the names of three references, with phone numbers and e-mail addresses, should accompany applications. These materials should be sent either by mail or electronically to:
Consultative Committee for the Selection of
The Dean of the School of Law
c/o Office of the Executive Vice President and Provost
The University of Texas at Austin
1 University Station G1000
Austin, Texas 78712
e-mail: LawDean@uts.cc.utexas.edu
The University of Texas at Austin is an Affirmative Action/Equal Opportunity Employer.

In “Moral Heuristics,” Behavioral and Brain Sciences 28(4), 531-573 (2005), Professor Cass Sunstein draws on recent scientific literature on heuristics in judgment and decision-making to argue that heuristics play a pervasive role in moral cognition and often lead to mistaken and even absurd moral judgments. In this commentary, I argue that by focusing on moral judgments he assumes are distorted or mistaken, Sunstein reverses the normal order of inquiry in the cognitive sciences, which seeks to understand the ideal operations of a cognitive system before attempting to explain its occasional pathologies or disorders. What Sunstein gives us, in effect, is a theory of performance errors without a corresponding theory of moral competence. Additionally, I argue that Sunstein's objections to thought experiments like the footbridge and trolley problems are unsound. Exotic and unfamiliar stimuli are used in theory construction throughout the cognitive sciences, and these problems enable us to uncover the implicit structure of widely shared moral intuitions.

New Listserv Dedicated to the Field of "Legislation"
Following the success of the Election Law listserv (which I co-manage with Dan Lowenstein and which has over 600 members, including legal academics, political scientists, government officials, election attorneys and administrators, journalists and others), I am beginning a listserv on the topic of Legislation. To sign up, point your web browsers here and choose the option for subscribing. The same page has instructions for unsubscribing.
Here is a brief description:

The LEGISLATION list is an Internet Listserv residing at Loyola Law School, Los Angeles. This list is for general discussion of substantive and pedagogical issues related to legislation, including statutory interpretation, lobbying, political bribery, and issues of representative structures. The group is a private one, which consists primarily of academics who teach courses or write about questions related to these subjects. Legal and political practitioners also may join, subject to the approval of the list manager.
In addition to general issue relating to the subject matter, the list is intended to serve as a place where subscribers can discuss ideas they have for scholarship, works in progress, and problems they are encountering in teaching and conducting research. Members also are encouraged to share information about new books or articles and new judicial, legislative and administrative developments related to the topic of legislation
Postings to the list are not private, and archives are accessible to journalists and others. However, the list requires that journalists ask the permission of a post's author before quoting directly from that post.

As of now, this list is not the official list of the AALS Section on Legislation. Some of the features of the Legislation listserv (e.g., public archives and allowing non-law teachers to participate) are not consistent with current AALS policy, though AALS is taking up the question whether or not to allow the list to serve as the official list of the section.
Please direct any questions to me at rick.hasen-at-lls.edu. And please feel free to forward to interested people.

University of Georgia Law: Jim Rossi (Florida State): Approaching Deference for State Regulators in Antitrust Law Through Chevron.
Notre Dame Law: Ernest A. Young, Texas, "The Volk of New Jersey? Sovereignty and Political Community in Europe and the United States.". This sounds cool!
Georgetown Law & Economics: Jonathan Klick, Florida State University College of Law, "Incomplete Contracts and Opportunism in Franchising Arrangements: The Role of Termination Clauses"
Boston College Law: Michelle J. Anderson, Professor of Law, Villanova University School of Law.
University of Illinois Law: East Asia Undisciplined: Law, Economics, and Institutions in East Asia

For those interested in attending the Southeastern Association of Law Schools' Annual Meeting, this year's meeting will be held at The Breakers http://www.thebreakers.com/ in Palm Beach, Florida, from July 16-22. Information about SEALS can be found on our website:
http://www.nsulaw.nova.edu/seals/ For those who don't like to open attachments, the program will be posted on our website in the near future.
For those who are not familiar with SEALS, we have in excess of 75 member schools which include (of course) schools in the Southeastern part of the United States. We also have affiliates in California, New York, Rhode Island, Illinois, Indiana, Michigan and Nebraska, as well as the U.K., Canada (3 schools) and Australia (four schools).
Each year, we focus on a variety of topics related to law and law teaching. We also have a distance education project and annually do programs on distance education.

This Article analogizes the state, in its role as tax collector, to that of an investor, or to be more precise, that of a residual claimant on the earnings of all of the people and firms subject to the taxing power of the state. The relationship between modern democracy and its citizens would be strengthened if this analogy were more widely acknowledged because it recognizes citizen-taxpayers as contracting partners with the state. Unlike other libertarian conceptions of the state’s taxing authority, the framework developed here does not jeopardize the state’s ability to collect the revenues it needs to provide for the protections of its citizens.
The state-as-investor framework developed in this Article leads to a number of tax policy improvements. The framework suggests limits on the government’s ability to change people’s tax status after they have already embarked on careers and made the sunken, non-diversifiable investments in human capital that such career training requires. The framework advanced here also suggests that people should be able to make a once-in-a lifetime payment in lieu of taxes to the state in order to discharge their tax liability. This approach articulated here also seems superior to the utopian suggestion offered by Ayn Rand that taxation be voluntary, as well as to the unrealistic suggestion made by Nozick that income taxes are violative of man’s natural rights.

This symposium paper for the Temple Political and Civil Rights Law Review describes and evaluates state legislative proposals following the controversy surrounding the removal of Terri Schiavo’s feeding tube. Proposals to alter end-of-life decision-making standards have been introduced in at least twelve state legislatures. They appear designed to address the following perceived problems with the law that was applied in Ms. Schiavo’s case: (1) concern that the evidence regarding Ms. Schiavo’s wish to refuse treatment was weak or insufficient; (2) concern that despite family disagreement over the proper course of action, life-sustaining treatment was withdrawn; (3) frustration over the limited role for government officials in challenging the court decisions to allow the feeding tube to be removed; and (4) concern that the removal of feeding tubes causes individuals to “starve to death.” The proposals either require stronger evidence (such as a writing) of a patient’s wish to refuse artificial nutrition and hydration than is required by existing law or prohibit the removal of artificial nutrition and hydration when family members disagree. Many of the proposals provide for an enhanced role of government officials in challenging the removal of life-sustaining treatment.
In the main, supporters of these proposals have justified them as providing patients needed protection from surrogate decisions that do not accurately reflect patient choice. They are hailed in large part as protecting, rather than limiting, patient choice. This paper argues that they would in fact accomplish the latter; that a stronger presumption in favor of life is purchased at the expense of patient liberty. Moreover, there is good reason to believe that supporters of these changes to end-of-life law have a different agenda in mind altogether - to change the culture surrounding end-of-life decision-making so that, while the law may still allow people to direct that treatment be refused, more people will choose treatment, and thus life, than do now. Thus, the National Right to Life Committee’s draft model act (introduced as legislation in a number of states) must be considered together with its “Will to Live” document, a living will-type document designed for individuals to express their wishes in favor of continued life support, particularly nutrition and hydration. The calls for legislative change together with the drive to encourage people to execute the Will to Live are evidence of what the author terms a larger “movement against starvation,” in which patient choice, patient interests, and the interests of families are severely subordinated to the preservation of life.

In this essay, based on the 2006 William Howard Traft lecture, I critically evaluate Justice Antonin Scalia's famous and influencial 1988 Taft Lecture, entitled Originalism: The Lesser Evil. In his lecture, Justice Scalia began the now-widely-accepted shift from basing constitutional interpretation on the intent of the framers to relying instead on the original public meaning of the text. At the same time, I explain how Justice Scalia allows himself three ways to escape originalist results that he finds to be objectionable: (1) when the text is insufficiently rule-like, (2) when precedent has deviated from original meaning and (3) (when the first two justifications are unavailing) just ignore originalism to avoid sufficiently objectionable results. While Justice Scalia describes his approach as faint-hearted originalism, I contend that he is not really an originalist at all as evidenced by this lecture and also by his stances as a justice in several important cases. This leaves Justice Thomas as the only justice who seems at all bound by originalist conclusions with which he may disagree. I then summarize why the courts ought to adhere to original public meaning originalism, why this form of originalism is preferable to the principal alternative - which I call the underlying principles approach - and why originalism, properly understood, does not lead to the types of grossly objectionable results that leads Justice Scalia to be faint of heart.

And here is some more from the paper itself:

No doubt, Justice Scalia would condemn those many constitutional law professors who would urge courts to ignore the original meaning of the Constitution where doing so conflicts with their conception of “justice.” But Justice Scalia himself commits the comparable sin of ignoring the original meaning of those portions of the Constitution that conflict with his conception of “the rule of law as a law of rules.”17 Discarding those provisions that do not meet with one’s approval hardly seems like what we would call “fidelity” to a written constitution.
Justice Scalia’s infidelity to the original meaning of the Constitution as a whole was manifested in another way in his Taft Lecture. To the objection that originalism “In its undiluted form, at least, . . . is medicine that seems too strong to swallow,”18 he offers two responses. First, he asserts a strong role for precedent, even where it is inconsistent with the original meaning of the text: “Thus, almost every originalist would adulterate it with the doctrine of state decisis,” he admitted, “so that Marbury v. Madison would stand even if Professor Raoul Berger should demonstrate unassailably that it got the meaning of the Constitution wrong.” Notice that, contrary to his professed scepticism about the legitimacy of judicial review, this stance puts prior opinions of mere judges above that of the Constitution. Why? Simply because the results of doing otherwise seem to him too objectionable to countenance.

And a bit more:

So what does Justice Scalia say an originalist judge should do in the face of such objectionable results? Punt. In perhaps the most famous passage of his Taft Lecture, Justice Scalia describes himself as a “faint-hearted originalist.” In his words, “I hasten to confess that in a crunch I may prove a faint-hearted originalist. I cannot imagine myself, any more than any other federal judge, upholding a statute that imposes the punishment of flogging.”

And finally:

I would conclude from his Taft Lecture and his behavior on the Court that Justice Scalia is simply not an originalist. Whatever virtues he attributes to originalism, he leaves himself not one but three different routes by which to escape adhering to the original meaning of the text. These are more than enough to allow him, or any justice, to reach any result he wishes. Where originalism gives him the results he wants, he can embrace originalism. Where it does not, he can embrace precedent that will. Where friendly precedent is unavailing, he can assert the nonjusticiability of clauses that yield results to which he is opposed. And where all else fails, he can simply punt, perhaps citing the history of traditionally-accepted practices of which he approves. (emphasis added)

Washington University School of Law
Postdoctoral Fellowship in Empirical Legal Scholarship
The Washington University School of Law (http://law.wustl.edu/) is offering a one-year postdoctoral fellowship for scholars with Ph.D.s in political science, economics, sociology, statistics, or other social sciences with interests in empirical legal scholarship. The Fellow will conduct their own research, participate in an on-going research seminar, and collaborate with law school faculty. There are no teaching responsibilities. Candidates must possess a Ph.D. at the time of appointment. Salary will be competitive and commensurate with experience. The fellowship will be for a term of one year, with renewal possible. Applicants should send a curriculum vita, three letters of recommendation, a writing sample, and a statement of planned research to: Professor Andrew D. Martin, Campus Box 1203, Washington University, St. Louis, MO, 63130. Applications will begin being considered on February 15, 2006.

For justices Ruth Bader Ginsburg and Stephen Breyer a decade ago, nearly all Republican senators consented to nominees of a Democratic president who were legal liberals but qualified by historical standards. If President Bush's future nominees match the caliber of Chief Justice John Roberts (for whom many Democrats voted) and Judge Samuel Alito, then most Democrats should accept them as qualified legal conservatives.
Like Ginsburg and Breyer, both Roberts and Alito earned the highest endorsement from the American Bar Association. They further demonstrated intellect and an even temperament in hearings. Raising any standard other than duty to the Constitution and an independent judiciary makes cannon fodder of nominees and the judiciary itself. To avoid threats of "payback" when the presidency or Senate majority changes party (as they will at some point), the Senate should recover its constitutional senses now. (emphasis added)

Debate over the proper function of courts tends to focus on delineating the outer limits of judicial authority. Of primary concern is the phenomenon often described as "judicial activism." Although there is no fixed notion of precisely what constitutes judicial activism, the idea underlying the activist critique is that we ought to be worried about judges overstepping the bounds of their role, and somehow or other doing more than is proper.
What might be characterized as "judicial inactivism," in contrast, has generally been overlooked. This is somewhat curious. Underlying concern about judicial inactivism is a recognition of the possibility that judges might fail to perform the minimal components of the judicial function. The consequences of such a judicial failure to act - typically the preservation of the status quo - will generally be no less significant than those resulting from judicial action. Indeed, since improper judicial inaction might be harder to detect than improper judicial action, one might suppose that we should be more concerned about judicial inactivism than we are about judicial activism.
This article attempts to provide an answer to the question of what judicial inactivism might look like. In so doing, it draws on previous efforts to articulate models of civil adjudication, and unites that literature with the largely distinct body of work addressing the topic of judicial candor. The goal is to articulate at least some of the components of the "adjudicative duty" - a court's minimal adjudicative obligations when presented with a justiciable claim over which it has jurisdiction.

This article summarizes the author's argument in her book The Clean Water Act and the Constitution (ELI 2004) that constitutional principles such as standing and separation of powers distort the balance of enforcement authority that Congress created in most of the federal environmental statutes. Arguing that the inclusion of environmental citizen suits is an important part of American environmental policy and that the Supreme Court has unnecessarily narrowed constitutional doctrines to limit citizen suits, this article concludes that a structural amendment to the United States Constitution that recognizes the role of citizens in the law could better balance environmental enforcement opportunities while preserving to Congress, rather than the courts, the primary authority to set environmental policy.

Many legal rules can be interpreted as creating options. Option pricing is thus important for understanding the ex ante effects of these rules. And, recognizing that individuals, whose behavior the law aims to influence, are imperfectly rational, a behavioral option pricing model is a potentially helpful tool for legal policy. This paper develops such a model and applies it to a series of legal problems in tort law, contract law, corporate law and criminal law.

The aggrandizement of the administrative state in terms of its size and power has enabled the federal judiciary to enter the political arena regarding control of the bureaucracy. Some scholars have argued that the manner in which courts responded to this development of modern administration is a function of the ideological foundation of the courts relative to the politics and decisions of the agencies. Yet, the Supreme Court's seminal decision in Chevron mandates that courts must afford great deference to agency rule making, irrespective of the judges' ideology, thus providing for the possibility that this decision has acted as a jurisprudential regime by altering the manner in which subsequent administrative cases are evaluated. Which provides for greater influence on the Courts of Appeals, ideology or deference? Preliminary findings as reported herein suggest that Chevron did indeed shift decision making in the federal appeals courts and thus appears to have served as a jurisprudential regime in the area of administrative law. Notwithstanding, this increased tendency of courts to defer to agency action in the post-Chevron era coexists in tandem with the ideology of the courts, as it appears that both ideology and deference to administrative policy are critical to explaining this aspect of judicial behavior.

This article addresses the rise and gradual diversification of state statutes permitting settlors to self-settle trusts that avoid claims by their own creditors (known generically as asset protection trusts). The article argues that, whatever the motives underlying their authorization, asset protection trusts are unobjectionable, and even potentially beneficial, as a matter of public policy, at least to the extent that they affect the rights of voluntary (contract) creditors. The same can be said of revocable asset protection trusts, a new type of vehicle permissible since 2004 under one state statute. On the other hand, statutory provisions shielding the corpus of an asset protection trust from the claims of involuntary creditors (tort claimants, alimony creditors, etc.) raise a different set of concerns and merit revision on policy grounds. Unless efforts to revise the relevant statutes are undertaken in a broader legal context, however, so that they encompass all sorts of asset protection strategies, those efforts would prove counter-productive. A second section of the article analyses the problem of asset protection trusts in a bankruptcy proceeding. Like other forms of spendthrift trust, asset protection trusts should remain impervious to creditors' claims in bankruptcy, but as a matter of discharge policy ought to be made subject to the new means test regulating eligibility for bankruptcy relief. Ensuring that this occurs in all cases will require tweaking the language of the Bankruptcy Code as revised in 2005. A final section of the article briefly contemplates the trend toward coordinating trust law reform activities by the private, model lawmaking bodies. Although it displays some benefits, such coordination by independent organizations can have unhealthy side-effects that need to be identified and reckoned with.

The author responds to Privatization: The Road to Democracy?, a paper presented by Professor Carol Rose as the Childress Lecture at Saint Louis University School of Law in September 2005. The author argues that there is no simple causal link between privatization efforts and the establishment of democratic institutions. Instead, institutions of democracy and private property have to be determined simultaneously. The author examines how intellectual property law illustrates this simultaneity.